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2010 DIGILAW 622 (JHR)

Dharambir Prasad v. Devendar Gope

2010-05-19

PRADEEP KUMAR

body2010
JUDGMENT Pradeep Kumar, J.- Heard the learned counsel for the appellants and learned counsel for the Respondent. 2. The instant First appeal has been filed on behalf of the appellant against the judgment dated 28.4.2005 and decree dated 16.5.2005 passed by Sri Shiv Pujan Tiwary, Subordinate Judge-II in Title Suit No. 20 of 1996 by which judgment the suit filed by the plaintiff-appellant for specific performance of the contract dated 1 0.1.1996 was dismissed on contest with cost. 3. It is submitted by learned counsel for the appellant that the learned trial court has committed an error of law and fact in giving a finding while deciding issue no. 4 that the time was the essence of contract and since, the plaintiff failed to deposit the money as per the contract of sale, hence as per the contract they have lost the right to get the sale deed executed and have forfeited their earnest money. It is submitted that the plaintiff has proved by its documents that he was always ready and willing to perform his part of the contract and it is the defendant-respondent, who have failed in keeping their promise. Learned counsel for the plaintiff has relied upon the judgment of the Supreme Court reported in A.I.R 2000 SC page 2408 in the case of Motilal Jain: "where it has been settled that the time is generally not the essence of contract in sale and there is no delay in asking for execution of sale even after 9 months". He also relied upon a judgment in a case reported in AIR, 2008, SC page 304 [: 2008(2) JLJR (SC)27] in the case of Balasaheb Dayandeo Naik & Ors. vs. Appasaheb Datatraya Pawar. 4. On the other hand, learned counsel for the respondent-defendant has submitted that from the bare reading of the agreement, it will show that for his personal necessity the Defendant had entered into the agreement to sell his land for the marriage of his daughter and that is why it was agreed between the parties that the sale deed is to be executed by 10.4.1996 on payment of Rs.3,72,000/and since, in spite of demand, the plaintiff failed to deposit the money and get the sale executed, he has lost the right to get back the earnest money and the trial court rightly dismissed the suit. He has relied upon the judgment of the full court of the Supreme Court reported in A.I.R. 1993, SC page 1743 in the case of Chand Rani VS. Kamal Rani followed by the judgment of the Supreme Court reported in 2009 A.I.R SCW page 7144 in the case of A.K. Lakshmipati(D) and others VS. Rai Sahe Pannalal H. Lahoti Charitable Trust & Ors.". 5. After hearing both the parties and after going through the evidences on record, I find that the plaintiff-appellant case in the plaint was that the Defendant are the owner and in possession of the suit property i.e. schedule A of the plaint. The defendants were in urgent need of financial assistance, therefore, they entered into an agreement of sale with the plaintiff to sell the suit property on payment of sum of Rs.4,22,000/- under an agreement dated 10.1.1996 which was duly admitted by Notary Public. It was agreed between the parties that Rs.50,000/- will be paid as the earnest money by the plaintiff at the time of execution of agreement of sale and balance amount will be paid on execution of the deed. The plaintiff had paid Rs.50,000/- against grant of receipt. It was stipulated in the agreement that the sale will be made before 10.4.1996 by payment of balance amount of Rs.3,72,000/-. It is submitted by the plaintiff in the plaint that between 11.1.1996 to 10.4.1996, the plaintiff approached several times to the defendant and asked them to execute the sale deed with respect to the suit property in favour of the plaintiff, but the defendants evaded the execution of the sale deed on one or other pretext. The plaintiff then sent a registered notice dated 14.2.1996 through letter under registered cover mentioning therein to execute registered sale deed after receiving the same. Defendants assured that the same will be executed within a fortnight. The aforesaid notice as per the plaint was sent on 22.2.1996 by one Baldeo Prasad from Chatra Post Office. Thereafter, plaintiff again under certificate of posting dated 29.3.1996 sent another notice, but no reply was received by the plaintiff from the Defendant. The plaintiff submitted that they were always ready and willing to perform his part of the contract and purchase the defendant's land. Thereafter, plaintiff again under certificate of posting dated 29.3.1996 sent another notice, but no reply was received by the plaintiff from the Defendant. The plaintiff submitted that they were always ready and willing to perform his part of the contract and purchase the defendant's land. When the plaintiff heard that the defendant is going to sell the suit property to some other person, subsequently, plaintiff received notice dated 17.6.1996 sent by the defendant through his letter which was replied by the plaintiff through registered letter dated 22.6.1996. It is submitted that since, finally defendant refused to execute the sale deed on 10.4.1996, through the advice of his lawyer, he filed suit for specific performance. 6. In response to the notice, defendant appeared in the suit and filed their written statement denying that the plaintiff was ready and willing to perform his part of the contract within stipulated time i.e. by 10.4.1996. The defendant has submitted that they approached the plaintiff several times and demanded payment of the money as they were ready to execute the sale deed, but the plaintiff was not ready with his money. The defendant denied that they received any registered notice dated 14.2.1996 by the plaintiff who requested to execute the sale deed after receiving the balance amount of consideration. The defendant also stated in their written statement that the defendant were in need of money for settlement of marriage of their daughter Kumari Nirmala and hence they entered into agreement of the sale with the plaintiff. It was agreed that the plaintiff will get the sale deed executed by 10.4.1996. It was further agreed that if the plaintiff fails to comply to perform his part of contract within stipulated period i.e. till 10.4.1996 then the 'entire earnest money will be forfeited and the plaintiff will not be allowed to recover the same. It was further agreed between the parties that if the defendant will refuse the sale deed, the plaintiff will be entitled to take legal action against the defendant Subject to the payment of the remaining amount in the treasury. The defendant asserted that they approached several times to the plaintiff and asked him to deposit the balance consideration rioney of Rs.3,72,000/-, but he did not deposit the same as the defendant was ready to execute the sale deed with respect to the said property in favour of the plaintiff. The defendant asserted that they approached several times to the plaintiff and asked him to deposit the balance consideration rioney of Rs.3,72,000/-, but he did not deposit the same as the defendant was ready to execute the sale deed with respect to the said property in favour of the plaintiff. The defendant asserted that they sent a notice dated 25.3.1996 requesting the plaintiff to perform his part of the contract according to the agreement by 10.1.1996. but the plaintiff failed to comply the same. The defendant again sent notice on 2.4.1996 under certificate of posting and even after receipt of that notice, plaintiff took no action in terms of the agreement and the plaintiff failed to comply and perform his part of the contract. The defendant was forced to take loan from his relatives with interest for marriage of his daughter and this unexpected loan created heavy mental tension and anxiety and as per the stipulation of the agreement the defendant are entitled to retain Rs.50,000/-. They claimed that the plaintiff was never willing and ready to perform his part of the contract. 7. It appears that the trial court on the basis of the pleadings of the parties framed the following 7 issues which are as follows: (i) Is the suit, as framed, maintainable ? (ii) Whether the plaintiff has got cause of action and right to sue? (iii) Whether the suit is barred by law of limitation. (iv) Whether the time was the essence of the contract of sale? (v) Whether the plaintiff was ready and willing to perform the contract on his part? (vi) Whether the plaintiff is entitled to a decree for specific performance of contract? (vii) Whether the plaintiff is entitled to any other relief or reliefs? 8. The main issue was issue no.4 and issue no. 5. The learned trial court after discussing the evidences as led by the parties while deciding issue no. 4 at para 8 came to a conclusive finding that the time was the essence of the contract and hence decided the issue against the plaintiff. The issue no.5 was also decided by the trial court against the plaintiff and on the basis of these two findings being against the plaintiff the suit was finally dismissed. 4 at para 8 came to a conclusive finding that the time was the essence of the contract and hence decided the issue against the plaintiff. The issue no.5 was also decided by the trial court against the plaintiff and on the basis of these two findings being against the plaintiff the suit was finally dismissed. The plaintiff has raised these two points in that agreement of sale which has been settled by various judgment of the Supreme Court that time cannot be the essence of contract. 9. Now, let us first consider the agreement which was entered into between the parties on 10.1.1996. The agreement which was marked Ext.4 in the suit reads as under "The seller is in urgent need of money and hence he is willing to sell the property to the purchaser for a sum of Rs.4,22,000/-. It was also stated that earnest money, the seller has received is Rs.50,000/- and the purchaser will pay the rest amount of Rs.3,72,000/by 10th April, 1996 and get the sale deed executed. If the seller or his heir will not execute the sale deed of payment of Rs.3,72,000/- then the purchaser will be at liberty to deposit the money in the treasury and get the sale executed according to law". I.O. Thus, from the aforesaid agreement it is clear that there was a stipulation in the agreement to sale that the purchaser will deposit Rs.3,72,000/- by 10th April, 1996 and get the sale executed otherwise he will deposit the same in the treasury and get the sale executed in accordance with law. The plaintiff claimed that he was ready and willing to deposit the said amount by 10th April, 1996 and it was the defendant who evaded the execution of sale deed. In that respect, let us now examine the evidences as offered by the plaintiff. . 11. The plaintiff has examined 8 witnesses who are: P.W.1 Dharamvir Prasad, the appellant PW.2 Rajendra Prasad P.W.3 Rasul Mian P.W.4 Umesh Prasad P.W.5 Dukhi Prasad P.W.6 Nageshwar Thakur P.W.7 Nand Kishore Sahu P.W.8 Ram Swarath Singh The plaintiff-appellant, P.W.1, Dharamvir Prasad has stated that he entered into the agreement to purchase the suit property on 10.1.1996 for Rs.4,22,000/and he had made an advance earnest payment of Rs.50,000. As per the agreement the sale deed was to be executed within 3 months. As per the agreement the sale deed was to be executed within 3 months. He has stated that on 5.2.1996 he had gone to the defendant and asked him to execute the sale deed and then he asked for one month time. He again went to him on 12.2.1996 then again he gave a evasive reply and finally on 14.2.1996 he sent the notice through his lawyer, but no reply was received. Then he sent another notice under certificate of posting on 29.3.1996, but no reply was received. On 10.7.1996 he asked him to execute the sale deed, but defendant refused to execute the sale deed. He then filed the suit. He has stated that it is not true that on 25.3.1996 notice was sent by the defendant for depositing the money for execution of the sale deed. He has stated that he was always ready and willing to perform his part of the contract. In his cross-examination in para 12 he has stated that he cannot say as to from which post office the registered notice and under certificate of posting was' sent on 14.2.1996 and 27.2.1996, since the same was sent by one Baldeo. There is no date in the receipt of the registry. It is to be inquired from the post office. He has stated that on 10.7.1996 he had gone to the house of the defendant at Kisunpur for getting the sale executed. In para 15 of his cross he has stated that he had gathered money by taking loan from his brother. He had only Rs.1 ,20,000/- with him. The rest of the money was with his brother and at present the money is with his brother. He has stated that he had not deposited the money before 10.4.1996 in the treasury for purchase of the stamps and at the time of filing the suit he had only deposited the court fee money and his suit was dismissed for non payment of court fees. Subsequently, the suit was restored and court fees was paid after one year and he denied that due to non providing of money for getting the sale deed executed within time, the defendant was put in great harassment and had to take loan for marriage of his daughter. Subsequently, the suit was restored and court fees was paid after one year and he denied that due to non providing of money for getting the sale deed executed within time, the defendant was put in great harassment and had to take loan for marriage of his daughter. Thus from the evidences of the plaintiff it is clear it had no ready money for the sale deed on the date fixed i.e. 10.4.1996 and he had not even deposited money in the treasury for purchase of the stamp for execution of the sale deed which is always purchased by the purchaser. The plaintiff have submitted that as per the judgment of the Supreme Court, as relied by him, in a contract of sale of immovable property time cannot be the essence of the contract. 12. The defendant has also examined 8 wimesses: D.W.1 Ram Prasad Sahu D.W.2 Binod Kumar D.W.3 Ramawatar Mistry D.W.4 Kamleshwar Gope D.W.5 Murari Prasad D.W.6 Ram Kumar Yadav D.W.7 Bihari Prasad Sinha DW.8 is Devendra Gope, Defendant-respondent of the case (legal heir) D.W.9 Abdul Gaffar The defendant, D.W.8 has clearly stated that his father, Bigan Gope (original defendant) has entered into a contract for sale of property since, his sister was to get married and hence it was stipulated that the sale deed will be executed by 10.4.1996 on payment of balance amount of Rs.3,72,000 and inspite of the money required, when the plaintiff-purchaser failed to deposit Rs.3,72,000/-by 10.4.1996, his father had no option but to take loan for the purpose of marriage on heavy interest. The defendant witnesses denied that any notice was received by them rather the defendant himself gave a notice to the plaintiff on 17.6.1996 that they should deposit the sum of Rs.3,72,000/- within 24 hours, otherwise they will forfeit the earnest money also. The defendant has also relied upon the decision of the Supreme Court reported in "2009 (A.I.R.) SCW in the case of A.K. Lakshmipaty vs. Rai Sahab Pannalal" in that case also the Hon'ble Supreme Court has relied upon the full court judgment of the Supreme Court in the case of "Chand Rani vs. Kamal Rani reported in A.I.R. 1993 SC page 1742" where in it was held that in case of sale of immovable property there is no presumption as to the time of the essence of contract. The Hon'ble Supreme Court kept that principle in mind after considering the agreement in that case giving a finding as under at para 17 of the judgment "we can very well see that time was repeatedly mentioned to be of prime importance and it was stated quite clearly that under all circumstances, the appellants would have to definitely deposit the balance amount of Rs.5 lakhs by the date stipulated in the contract for sale. Hence, this submission advanced by Mr. Venugopal, that time was not the essence of the contract cannot at all be accepted and therefore, we reject the same". In the instant case also I find from the pleadings and evidences of the parties that the defendant had entered into an agreement to sell his property because he was urgently in need of money for marriage of his daughter and hence the agreement clearly stipulated that the purchaser had to get sale executed by 10.1.1996 by depositing of Rs.3,22,000/-. Although the plaintiff- appellant stated in his evidence that he was ready and willing to deposit the amount for sale, but he himself admitted in his cross examination that by 10.1.1996 he had not purchased stamp or deposit money for purchase of stamp so that the sale dead may be executed by the defendant. Moreover with regard to his readiness he also stated that he had only 1,20,000/with him and for the rest amount of Rs.3,52,000/- he is depending upon his brother, who had money but, definitely the said money was not with him and as such the claim of the plaintiff-appellant that he was ready and willing to perform his part of the contract within time cannot be accepted. 13. It is admitted by the plaintiff that final ultimatum was given by the defendant by his letter dated 17th June 1996 which was replied by the plaintiff by his letter dated 22.6.1996 which has been proved in the trial as Ext. 2/A. In the final notice dated 17.6.1996 the defendant, through his letter, had given the last chance stating that if he will not deposit Rs.3,72,000/- within 24 hours then he will forfeit the earnest money. Although the said letter has not been exhibited, but it was filed in the trial court alongwith the marriage card etc and the said letter has been acknowledged and accepted by the plaintiff-appellant by his letter Ext. Although the said letter has not been exhibited, but it was filed in the trial court alongwith the marriage card etc and the said letter has been acknowledged and accepted by the plaintiff-appellant by his letter Ext. 2/A. As has been relied by learned counsel for the appellant, it was held in the case of Chand Rani vs. Kamal Rani (supra) full court that "if the possession ultimately of the seller has been given for payment of the balance amount then the best thing for the purchaser is to pay the amount and then take appropriate step". In the said case the appellant has failed to do so and now he cannot be allowed to take advantage of his own mistake and pass the blame on the defendant. More so, the appellant has stated that they sent registered letter on 4.2.1996, but the same was not posted on 4.2.1996 as admitted by them in their pleading itself. According to them it was sent on 22.2.1996 by some Baldeo Prasad, but the receipt filed in the court had no readable date on the receipt nor the name of the post office. In his examination-in-chief he has stated that he cannot give the name as to from which post office the same was posted. It is settled principle of law held in so many judgment including one reported in "1997 A.I.R. sew page 956 in the case of K.S. Vidyanam and Ors. vs. Vairavan" that in agreement of sale of immovable property the readiness and willingness of parties for performing their part of the contract is essential. Thus, from the agreement and evidences as discussed above , I find that the plaintiff failed to comply with the time fixed in the agreement for purchase of the property. vs. Vairavan" that in agreement of sale of immovable property the readiness and willingness of parties for performing their part of the contract is essential. Thus, from the agreement and evidences as discussed above , I find that the plaintiff failed to comply with the time fixed in the agreement for purchase of the property. Moreover, he although, claimed orally and by letters which were never received by the defendants that he is ready and willing , but from his conduct it appears that he had no ready money to offer to the defendant-seller, since as accepted by him he had only Rs.1,20,000/ready with him and for the rest Rs.2,52,000/- he was dependent on his brother and the learned trial court has rightly observed that when he filed this suit he had no ready money even to pay the court fees and suit was dismissed for non payment of court fees and subsequently, after the restoration of the suit he paid the court fee after one year. 14. In that view of the matter, I find that the plaintiff was not ready and willing to perform his part of contract and as such as per the agreement he had rightly forfeited even the claim of earnest money. I find no merit in the appeal and I find no illegality and irregularity in the judgment and decree passed by the trial court. 15. In the result, the appeal is dismissed having no merit. However, no order of cost is passed on the appellant.