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2011 DIGILAW 483 (BOM)

Preetam Kaur v. Prakash Ramdeo jaiswal

2011-04-20

R.M.SAVANT

body2011
JUDGMENT:- 1. The above Appeal has been filed by the Original Defendant, challenging the Judgment and Order dated 21st April 2003 passed in Special Civil Suit No.20 of 2000 by which the Suit filed by the Plaintiff/Respondent for specific performance of contract came to be decreed and the Defendant was directed to execute the sale deed pertaining to the suit property as described in Para 2 of the Plaint in favour of the Plaintiff after receiving balance consideration within three months from the date of the Decree. In default, on the part of the Defendant in executing the said sale deed as per the Decree, the Plaintiff was to be at liberty to get the said sale deed executed through Court but at the costs of the Defendant. The parties would be referred to as per their status in the trial Court. 2. The Appellant herein is the original Defendant in the said Special Civil Suit No.20 of 2000 and the Respondent herein is the original Plaintiff. It was the case of the Plaintiff that on 30.7.98 the Defendant had agreed to sell suit land i.e. Property bearing T S K No.30, Thak No.92 situated at Mouza Fulchur Tah and Dist. Gondia to the Plaintiff for the consideration of Rs.7,01,000/- on executing an Agreement for Sale dated 30.7.98 after receiving earnest amount of Rs.1,01,000/ out of which Rs.50,000/- was paid by cheque and Rs.51,000/- was paid in cash. It was the case of the Plaintiff that he had also got cleared the challan for purchasing the non judicial stamp papers worth Rs.60,510/- on 28/4/99. The sale deed was to be executed on 30.4.99. It was the case of the Plaintiff that as the defendant was avoiding to. execute the sale deed, the Plaintiff had issued a telegraphic notice on 29/4/99 and had called upon the Defendant to remain present in Sub Registrar's Office on 3.5.99 because the preceding dates 30/4/99, 1/5/99 and 2/5/99 were holidays. As the Defendant did not turn up on 3.5.99 at the Sub-Registrar's Office, the Plaintiff served the Defendant notice dated 20.5.99 for executing sale deed upon receiving the balance consideration of Rs.6,00,000/-. It was the case of the Plaintiff that the Defendant received notice on 22/5/99 and thereafter the husband of Defendant requested for six months extension of time to execute the sale deed on some personal ground. It was the case of the Plaintiff that the Defendant received notice on 22/5/99 and thereafter the husband of Defendant requested for six months extension of time to execute the sale deed on some personal ground. It was the case of the Plaintiff that to avoid strained relations, the Plaintiff agreed to wait for six months. However, even at the end of six months, when the steps were not taken by the Defendant for execution of sale deed, the Plaintiff sent another notice on 18.1.2000 calling upon the Defendant to execute the sale deed. As the Defendant did not pay any heed to the said notice and, since the Plaintiff was always ready and willing to perform his part of the contract, as the consideration was more than Rs.5,00,000/- and the Defendant as a vendor was under the obligation to obtain Income Tax clearance certificate before execution of the registered sale deed, and since in the inquiry made by the Plaintiff, it was revealed that the Defendant had not even obtained I.T. Clearance certificate, the Plaintiff was constrained to file the Special Civil Suit No.20/2000 for specific performance of the Agreement for Sale dated 30/7/98. Alternatively, the Plaintiff had also prayed for refund of earnest amount of Rs.1,01,000/ along with damages by way of interest @ 36% per annum from the date of agreement. 3. The Defendant appeared before the Court in the above Suit and filed her written statement. The Defendant accepted the execution of Agreement of Sale, the total consideration fixed and the receipt of the earnest amount by her. The agreed date for execution of the sale deed was also not disputed by the Defendant. The Defendant however, denied that the Plaintiff had approached her prior to 30/4/ 99 for accepting the balance consideration amount and for execution of sale deed. r n fact, it was the case of the Defendant that she had approached the Plaintiff on many occasions prior to 30/4/99 for getting the sale deed executed. In so far as challan dated 28/4/99 for purchase of stamp papers is concerned, it was the case of the Defendant that it was a manipulated document. The Defendant accepted the receipt of telegraphic notice dated 29.4.99. In so far as challan dated 28/4/99 for purchase of stamp papers is concerned, it was the case of the Defendant that it was a manipulated document. The Defendant accepted the receipt of telegraphic notice dated 29.4.99. However, it was the case of the Defendant that the Plaintiff did not choose to get the sale deed executed on 29.4.99 and therefore issued a telegraphic notice to take advantage of holidays falling thereafter and called upon the Defendant to remain present on 3.5.99. It was the case of the Defendant that it was the Plaintiff, who had not come to the Sub-Registrar's Office on 3.5.99, and it was further the case of the Defendant that her son was present in the Sub-Registrar's Office through out the day and as the Plaintiff did not turn up, the Defendant issued a telegraphic notice cancelling the agreement and forfeiting the earnest amount. It was the case of the Defendant that even after receiving telegraphic ' notice dated 3.5.99, the Plaintiff did not respond and only after a period of 17 days i.e. on 20.5.99 had issued a notice to the Defendant wherein t there was no reference to the telegraphic notice issued by the Defendant. The Defendant has specifically denied that her husband had sought six months time for execution of sale deed. In so far as the Income Tax clearance certificate is concerned, it was the case of the Defendant that the Plaintiff had agreed that he would get the sale deed executed in two parts' in two different names with a view to obviate the requirement of I T clearance certificate. It was further the case of the Defendant that the Plaintiff had agreed that if there was to be only one sale deed, he would himself arrange for the said I.T. Clearance certificate by obtaining signature of Defendant on necessary forms. It was the case of the Defendant that her husband had reminded the Plaintiff on various occasions prior to 30/4/99 for obtaining the I.T. clearance certificate. However, the Plaintiff avoided to take steps for obtaining the said I.T. clearance certificate. It was the case of the Defendant that her husband had reminded the Plaintiff on various occasions prior to 30/4/99 for obtaining the I.T. clearance certificate. However, the Plaintiff avoided to take steps for obtaining the said I.T. clearance certificate. It was the case of the Defendant that the time was the essence of contract and since the Plaintiff failed to get the sale deed executed before the stipulated date, the Defendant has cancelled the agreement and forfeited the earnest amount, the Plaintiff was not entitled to the specific performance of the contract. In view of the amendment to the Plaint carried out by the Plaintiff wherein the facts that District Gondia was declared as District on 1.9.99 and the location of Collectors office, the price of land in that area had sky rocketed, was incorporated the Defendant had averred in the written statement that since the plaintiff had earlier realized that he had agreed o purchase the suit land at much higher cost and therefore he avoided the performance of contract. The Defendant lastly averred that the rant of specific performance of contract to he Plaintiff would be unjust and improper in view of the changed circumstances as the defendant would be subjected to an unfair loss. 4. On the basis of the pleadings, le trial Court framed the relevant Issues. In far as, execution of Agreement of Sale and sale consideration of Rs. 7,01,000/- and payment of earnest amount of Rs.1,01,000/on 30.7.98 are concerned, since the said facts were not disputed by the Defendant, the trial Court held the said facts to be proved. In fact the trial Court observed that there was no necessity to frame the said Issues. The relevant Issues, therefore from the point of view of the present Appeal are Issue Nos.3, 4, 6 which were to the following effect: (iii) Is Plaintiff ready and willing to perform part of contract? Yes. (iv) Is Plaintiff entitled for decree sought? Yes. (vi) Whether Defendant proved that Plaintiff avoided to perform contract? No. In so far as Issue Nos. (iii) and (iv) are concerned, the trial Court answered the said Issues in favour of the Plaintiff, and in 'so far as Issue No.(vi) is concerned, the trial Court answered the said Issue against the Defendant. 5. Yes. (vi) Whether Defendant proved that Plaintiff avoided to perform contract? No. In so far as Issue Nos. (iii) and (iv) are concerned, the trial Court answered the said Issues in favour of the Plaintiff, and in 'so far as Issue No.(vi) is concerned, the trial Court answered the said Issue against the Defendant. 5. The Plaintiff has examined as many as four witnesses i.e. himself as P.W.1, one Harichand Patte as P. W.2, who was the attesting witness to the agreement and also the mediator; Wasudo Upadhyay as P.W.3, the second attesting witness to the agreement and also the mediator for the transaction and, the Plaintiff's brother Deepak Jaiswal as P.w.4, who was also aware of the transaction. The Defendant did not enter into the witness box but examined three witnesses i.e. her son Indarjeet Balwant Singh Bharatiya as D.W.1, a witness from the Postal Department Narayan Tulsiram Nazin as D.W.2 and her husband Balwant Santosh Bharatiya as D.W.3. 6. The trial Court on the basis of the evidence on record decreed the said Special Civil Suit No.20/2000. The trial Court recorded a finding that the Plaintiff had proved his readiness and willingness to perform his part of the contract and had also proved the breach of the contract by the Defendant and her unwillingness to execute the sale deed. The trial Court inter alia held that the Plaintiff only was insisting for execution of the sale deed and that the readiness and willingess of the Plaintiff can inter alia be gathered from the following: (i) that the Plaintiff had proved his presence on 3.5.99 by virtue of documentary evidence (Exhibit 33); whereas the Defendant had not proved his presence at the Sub-Registrar's Office; (ii) that the financial wherewithal of the Plaintiff can be seen from Exhibit 71 which shows that substantial amount was available in the account of the Plaintiff. (iii) that the Defendant had failed to obtain Income Tax clearance certificate as mandated by Section 230A of the Income Tax Act; (iv) that the evidence of the Plaintiff showing his insistence for execution of the sale deed was corroborated by the evidence of P.W.Nos.2 and 3, who are independent witnesses, (v) that malafide intention of the Defendant of cancelling the Agreement for Sale and forfeiting the earnest amount can be seen from the telegram dated 3.5.99 (vi) that the readiness and willingness of the Plaintiff can also be gathered from the fact that he had already purchased neighbouring land (vii) that it has specifically come in the evidence of D.W.3 i.e. the husband of the Defendant that the Defendant would execute the sale deed if she gets an amount which was 10 to 15 times more than the amount agreed upon. (viii) that attempts of the Defendant to show that the Plaintiff was not an agriculturist. The trial Court, therefore, as indicated above was pleased to grant the decree of specific performance against the Defendant. 7. I have heard Shri Ghare the learned counsel appearing for the Appellant/ Defendant and Shri Dewani, the learned counsel appearing for the Respondent/Plaintiff. SUBMISSIONS OF LEARNED COUNSEL SHRI OHARE ON BEHALF OF THE APPELLANT/DEFENDANT (a) That the trial Court has erred in recording the finding that the Plaintiff was ready and willing to perform his part of the contract whereas the Defendant was not. (b) That the reliance placed by the trial Court on the evidence of P.W.Nos.2 and 3 was misplaced in view of the fact that there are no pleadings to the effect that the Plaintiff or any of his representative met the Defendant prior to 30.4.99 in relation to execution of the sale deed. (b) That the reliance placed by the trial Court on the evidence of P.W.Nos.2 and 3 was misplaced in view of the fact that there are no pleadings to the effect that the Plaintiff or any of his representative met the Defendant prior to 30.4.99 in relation to execution of the sale deed. In absence of the pleadings to the said effect, no evidence could have been led and if led the same could not be considered; In support of the said submission, reliance is placed on the judgment of the Apex Court in the matter of Ram Sarup Gupta v/s. Bishun Narain Inter College and ors, reported in AIR 1987 SC 1242 ; (c) Assuming that the evidence of P.W.Nos.2 and 3 is to be considered, the readiness and willingness to perform the contract cannot be proved by the evidence of third party, as the third party has no personal knowledge and cannot give evidence about readiness and willingness even if he is an attorney holder of the person concerned. (d) The trial Court erred in relying upon the affidavit dated 3.5.99 to hold that though the plaintiff was present in the Sub-Registrar's Office on 3.5.99 for getting the sale deed executed, the trial Court ought to have considered that the residence of the Defendant was only 11/2 Km away from the office of the Sub-Registrar and it would have been in the natural course of events that the Plaintiff would have sent for the Defendant, if not present in the Sub-Registrar's Office, or inquire why the Defendant is not coming; none of these things were done by the Plaintiff. (e) The delay of 17 days in issuing legal notice to the Defendant which was issued on 20.5.99 was not properly explained; (f) The trial Court erred in accepting the case of the Plaintiff that the Defendant had sought six months time for executing the sale deed. (e) The delay of 17 days in issuing legal notice to the Defendant which was issued on 20.5.99 was not properly explained; (f) The trial Court erred in accepting the case of the Plaintiff that the Defendant had sought six months time for executing the sale deed. The trial Court ought to have seen that the said case of the Plaintiff was merely based on his own statement as it was the case of the plaintiff that no one was present when the Defendant sought the said six months extension; (g) The trial Court erred in holding that the Defendant by not getting Income Tax clearance certificate prior to execution of the sale deed had committed breach of contract and had not show:1 her readiness and willingness to execute the sale deed; (h) The trial Court erred in holding that it was the responsibility of the Defendant to get the Income Tax clearance Certificate in the absence of there being any condition in the agreement to sale dated 30.7.98. That the trial Court failed to take into consideration that in none of the notices or the telegram sent by the Plaintiff to the Defendant, there is any reference to the Income Tax clearance certificate. The said fact proves that the Plaintiff was not ready and willing to perform his part of the contract. Reliance was placed on the judgment of the Apex Court reported in (1997) 3 SCC 1 , in the matter of K.S. Vidayandarri and ors v/s Vairavan. According to the learned counsel, in the said case, the facts were somewhat identical wherein a tenant was sitting on the property and there was not a single notice from the Plaintiff calling upon the Defendant to get the tenant vacated. (i) The trial Court erred in holding that the Plaintiff had funds available with him to perform his part of the contract. Reading of Exhibit 71, which is the extract of account of the Plaintiff, reveals that the balance of the Plaintiff was only Rs.5,71,293/- and therefore there is deficit of sum of Rs.89,217/- as the Plaintiff had to be ready with an amount of Rs.6,06,510/- which was the balance consideration and the stamp duty of Rs.60,510/-. Reading of Exhibit 71, which is the extract of account of the Plaintiff, reveals that the balance of the Plaintiff was only Rs.5,71,293/- and therefore there is deficit of sum of Rs.89,217/- as the Plaintiff had to be ready with an amount of Rs.6,06,510/- which was the balance consideration and the stamp duty of Rs.60,510/-. (j) The trial Court erred in taking into consideration that the Plaintiff had prepared challan for stamp duty when there was specific evidence on record in the form of an admission by the Plaintiff that although he prepared the challan, he had not deposited the amount on 28.4.99; (k) That the trial Court erred in holding that the telegram sent by the Defendant dated 3.5.99 cancelling the agreement and forfeiting the earnest amount had not been received by the Plaintiff when on the same address the reply sent by the Defendant to the notice of the Plaintiff was received by the Plaintiff. The learned counsel relied upon the judgment of the Apex Court reported in (1999) 7 SCC 510 K in the matter of Bhaskar an v/s. Sankaran Vaidhyan Balan and anr; and the judgment of this Court reported in (2007) Mh.LJ 787 in the matter of Armstrong Builders and Developers v/s Vishvanath Naik. (l) That the sale deed was to be executed in two parts to obviate the need of getting the IT clearance certificate, if only one sale deed was to be executed, it was the Plaintiff who was to bring the IT clearance Certificate. (m) That the Defendant would suffer hardship if the decree for specific performance is granted as prices have increased manifold. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT/ PLAINTIFF. (i) That the material facts have been pleaded by the Plaintiff in the Suit and, therefore, had put the Defendant on notice as to the case which she has to meet. It has been specifically pleaded by the Plaintiff that a request was made on behalf of the Plaintiff prior to 30/4/1999, the evidence of P.W.Nos.2 and 3 only lends corroboration to the said case. It is well settled that the evidence need not be pleaded. It has been specifically pleaded by the Plaintiff that a request was made on behalf of the Plaintiff prior to 30/4/1999, the evidence of P.W.Nos.2 and 3 only lends corroboration to the said case. It is well settled that the evidence need not be pleaded. Reliance is placed on the same judgment which was relied upon by the learned counsel for the Defendant i.e. in the matter of Ram Sarup Gupta v/s. Bishun Narain Inter College and ors, reported in AIR 1987 SC 1242 ; (ii) That the Plaintiff has proved his readiness and willingness by leading cogent evidence in that behalf, in the matter of calling upon the Defendant to execute the sale deed by showing his financial wherewithal and by remaining present in the Sub-Registrar's Office on 3/5/1999. (iii) That since the Defendant has not stepped into witness box, the evidence of the D.W.1 and D.W.3 can not be relied upon to prove the readiness and willingness of the Defendant. In any event, the D.W.No.1 has specifically stated that he is not personally aware of the transaction whereas the D.W.3 was merely brought to improve upon the evidence given by the D.W.1. The Evidence of D.1 and D. W.3 therefore does not inspire confidence. (iv) That the theory of executing the sale deed in two parts is not supported by the document itself and therefore the same cannot be accepted. The said theory would also not stand to scrutiny in the teeth of the statutory requirement as contained in Section 230A of the Income Tax Act. (v) The Court cannot be a party to a litigant who is trying to avoid obligations imposed by a statute. In the instant case, Section 230A mandates that the vendor should obtain the NOC (vi) That there is absolutely no evidence on record to show that the Defendant had taken any steps to obtain NOC. Assuming for the sake of argument that it is the case of the Defendant that the Plaintiff had to obtain the NOC, it is an admitted fact that the Defendant had not supplied any particulars so as to enable the Plaintiff to obtain the IT clearance Certificate. Assuming for the sake of argument that it is the case of the Defendant that the Plaintiff had to obtain the NOC, it is an admitted fact that the Defendant had not supplied any particulars so as to enable the Plaintiff to obtain the IT clearance Certificate. (vii) That the need of the Plaintiff for the plot in question can be seen from the fact that the Plaintiff has already purchased the adjoining property and set up his units therein and, therefore the suit property was all more required by the Plaintiff for his business. (viii) That from the evidence adduced on behalf of the Defendant i.e. Evidence of D.W.3 who has stated in no unmistable terms that the Defendant has not executed the sale deed as she wanted 10 to 15 times more amount. This disclosed the actual reason why the Defendant was not ready and willing to execute the sale deed. (ix) That the conduct of the Defendant in cancelling the sale deed and forfeiting the amount of earnest money of Rs.1,01,000/-, even when there was no such condition in the Agreement of Sale dated 30/4/98, shows the malafide intention of the Defendant and demonstrates that the Defendant was not ready and willing to comply with the terms of the Agreement of Sale. (x) That the discretion in the instant case has been exercised by the trial Court on sound, principles, considering the facts and circumstances of the case. (xi) That the deposition of the witnesses on behalf of the Defendant makes it clear that in view of the subsequent increase in price, the Defendant was not ready and willing to complete the transaction. (xii) Whether the evidence of the son and husband of the Defendant i.e. D.W.1 and D.W.3 who are not the parties to the transaction can be considered, whilst considering the case of the Plaintiff that he was ready and willing to perform his part of the contract (xiii) That no case of hardship is made out by the Defendant as it is clear from the evidence adduced on behalf of the Defendant that Defendant was ready and willing to sell the suit property if she gets 10 to 15 times more than the agreed price. CONSIDERATION: 8. As indicated above, the suit filed was for specific performance of the Agreement for Sale dated 30/7/98. CONSIDERATION: 8. As indicated above, the suit filed was for specific performance of the Agreement for Sale dated 30/7/98. There is no dispute about the execution of the Agreement for Sale dated 30/7/98 and payment of earnest amount of Rs. 1,01,000/- out of the total consideration of Rs. 7,01,000/- on the said day, however since the very readiness and willingness of the Plaintiff is sought to be questioned, one is now required to proceed to see, whether the Plaintiff was ready and willing to perform his part of the contract, of which he seeks specific performance and further to see as to who is responsible for the breach of the same. It would be relevant to note that it is the case of the Plaintiff that in spite of calling upon the Defendant on number of occasions prior to 30/4/99 by which day the sale deed was to be executed, the Defendant had failed to execute the said sale deed. It is the case of the Plaintiff that even after serving three notices, the Defendant had failed to come forward to execute the sale deed. In juxtaposition it is the case of the Defendant that after execution of the Agreement for Sale on 30/7/98 since the Plaintiff had agreed to pay more price than the actual price of the suit land, the Plaintiff had delayed to perform his part of the contract and avoided to get the sale deed executed and only after the prices of the lands had sky rocketed after Gondia was declared as a District, the Plaintiff has tried to take advantage of the Agreement of Sale by issuing the said notices and claiming the decree of specific performance. In so far as readiness and willingness of the Plaintiff is concerned, the evidence of P.W.No.2 and P.W.No.3, who were the brokers in the transaction, is relevant. The said witness P.W.2 has stated in his evidence that on 2/3 occasions about 25 days prior to expiration of 9 months period, he had approached the Defendant to get the IT clearance certificate and get the sale deed executed. Both the said witnesses have stated that the Defendant was under an obligation to bring the IT clearance certificate for execution of the sale deed, and that the Defendant had failed to get such certificate. Both the said witnesses have stated that the Defendant was under an obligation to bring the IT clearance certificate for execution of the sale deed, and that the Defendant had failed to get such certificate. It is significant to note that P.W.2 has stated in his evidence that the suit land was leased out to the Railway contractor for dumping sleepers by the Defendant, and the Defendant could not get it vacated. Hence he and PW3 had approached the Plaintiff on 2/3 occasions about 25 days prior to expiration of 9 months period when the Defendant had assured them that she would obtain IT clearance certificate and would execute the sale deed. It is their evidence that though the Defendant assured that she would get the IT clearance certificate after 2/3 visits, she simply informed them that process of obtaining IT clearance certificate was in progress. However, ultimately since the Defendant failed to obtain the said IT clearance certificate, that the sale deed could not be executed. This corroborative evidence of the said two witnesses of the Plaintiff, according to the learned counsel for the Defendant, could not be taken into consideration as there were absolutely no pleadings in that regard. The learned counsel for the Appellant/Defendant relied upon the judgment of the Apex Court in the matter of Ram Sarup Gupta v/s. Bishun Narain Inter College and ors, reported in AIR 1987 SC 1242 to buttress his said submission. However, in the said judgment, it has been laid down by the Apex Court that whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. Para 6 of the said judgment is material and is reproduced herein under: The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed: "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to considering dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? 1 f it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." In the instant case, there is specific averment in Para 4 of the plaint which is to the allowing effect: "That the Plaintiff approached to the defendant prior to 30.4.99 for the completion of contract by accepting the balance consideration of Rs.6,00,000/- for the execution of the sale deed" The Defendant was, therefore, fully aware of the Plaintiff's case. The P. W.Nos.2 and 3 cannot be said to be interested witnesses as they had admittedly acted on behalf of the Defendant initially on coming to know from her that she intends to sell the land in question and offered it to the Plaintiff. The Defendant was therefore aware of the case that she would have to meet in the said Suit. The observations of the Apex Court in Ram Sarup Gupta's case therefore apply with full vigor to the facts of the instant case and once the parties went to trial knowing the case they had to meet, the contention of the learned counsel for the Appellant/Defendant that the evidence adduced by the Plaintiff through P.W.Nos. 2 and 3 cannot be taken into consideration, cannot be accepted. 9. The defining factor from which, the readiness and willingness of the Defendant can be gathered is the aspect of obtaining IT clearance certificate. As mandated by Section 230A of the Income Tax Act the IT clearance certificate is required if the value of the transaction is more than Rs.5 lakhs. The said section mandes that whosoever purports to transfer, assign, limit, or extinguish the right, title or interest of any person to or in any property, valued at more than five lakh rupees, the registering officer appointed under that Act shall not register any such document unless the Assessing Officer certifies that –(a) such person has either paid or made satisfactory provision for payment of all existing liabilities under this Act, the Excess Profits Tax Act, 1940 (15 of 1940), the Business Profits Tax Act, 1947 (21 of 1947), the Indian Income Tax Act, 1922 (11 of 1922), the Wealth Tax Act, 1957 ( 27 of 1957), the Expenditure tax Act, 1957 (29 of 1957), the Gift tax Act, 1958 (18 of 1958), the Super Profits Tax Act, 1963 (14 of 1963) and the Companies (Profits) Surtax Act, 1964 (7 of 1964); or (b) the registration of the document will not be prejudicially affect the recovery of any existing liability under any of the aforesaid Acts. 10. The said IT clearance certificate has to be applied for in the prescribed form. The said information required is as regards the vendor. 10. The said IT clearance certificate has to be applied for in the prescribed form. The said information required is as regards the vendor. The evidence, on record of the instant suit, especially the evidence of D.W.3 makes it clear that the D.W3, who is the husband of Defendant, was aware that such an I T clearance certificate was required and that the details of the Defendant would have to be mentioned in the prescribed form. D.W3 in his evidence has admitted that no information was furnished to the Plaintiff. There is further admission of D.WNo.3 that it was not the responsibility of the Plaintiff to get the I T clearance certificate. In the light of the statutory provision and the admissions of the witness of the Defendant, the fact that the Plaintiff in the notices or the telegram did not call upon the Defendant to get the I T clearance certificate, in my view, would make no difference and would not dent the readiness and willingness of the Plaintiff. In the teeth of the statutory provision the reliance placed by the Defendant on K S Vidayandam's case is, in my view, misplaced. The theory sought to be propounded by the Defendant that to obviate the need of I T clearance certificate, the said sale deed was to be executed in two parts cannot be accepted for two fold reasons; firstly the Agreement for Sale does not disclose any such intention merely because in the said Agreement for Sale it has been mentioned that the sale deed would be executed in favour of the Plaintiff or any other person would not mean that the sale deed was to be executed in two parts; and secondly, the Plaintiff cannot seek an imprimatur of the Court for violation of a statutory provision. The Court cannot be a party to a litigant who is trying to avoid obligations imposed by the statute. It appears that the Defendant has propounded this theory that the sale deed was to be executed in two parts so as to avoid the contract. The Court cannot be a party to a litigant who is trying to avoid obligations imposed by the statute. It appears that the Defendant has propounded this theory that the sale deed was to be executed in two parts so as to avoid the contract. Considering the evidence on record especially the evidence of P.W.No.2 and P.W.No.3, who have stated that they had approached the Defendant 2/3 occasions prior to 30/4/99 to obtain the IT clearance certificate so that execution of the sale deed would be facilitated and that the Defendant had assured them that the work of obtaining I T clearance certificate is in process, as also the evidence of D. W.3 i.e. the husband of Defendant, that it was not the responsibility of the Plaintiff to obtain I T clearance certificate as also considering the mandate of Section 230A of the Income Tax Act, it would have to be held that it was the Defendant who had not taken any steps to get the I T clearance certificate, which can only be attributed to the fact that she was not interested in executing the sale deed and thereby not fulfilling her part of the contract. 11. In so far as time being an essence of contract is concerned, though it is well settled that in respect of sale of immovable property time is not the essence of contract, but in the context of the law laid down by the Apex Court in so far as urban properties are concerned, that the contract should be concluded within a reasonable time, the facts of the instant case would have to be considered. In the instant case, it would be relevant to note that though the Plaintiff by telegram had called upon the Defendant to come to the Sub-Registrar's office on 3/5/99 in stead of 29/ 4/99 when the sale deed was to be executed, the Defendant did not raise any objection to the said extension of time. If the time was the essence of contract, it was necessary on the part of the Defendant to state on the very day it on 29/4/99 by addressing a letter to the Plaintiff that she was ready and willing to perform her part of contract on the said day and get the sale deed executed on 29/4/99 itself. If the time was the essence of contract, it was necessary on the part of the Defendant to state on the very day it on 29/4/99 by addressing a letter to the Plaintiff that she was ready and willing to perform her part of contract on the said day and get the sale deed executed on 29/4/99 itself. But most surprisingly, the Defendant did not take any such steps and thereafter on the pretext that the Plaintiff has not remained present in the Sub-Registrar's office, has cancelled the Agreement for Sale and forfeited the earnest amount. At least prior to the said cancellation, it was expected of the Defendant, if the time was in fact the essence of contract that she would address a letter to the Plaintiff setting out the facts and thereby informing the Plaintiff that the Plaintiff has not remained present on 29/4/99 and therefore on 3/5/99 she is constrained to cancel the Agreement for Sale. But as can be seen from the facts of the present case, none of these things were done and in fact when there was no provision in the Agreement of Sale for forfeiture, the Defendant has forfeited the earnest amount. This speaks volumes about the conduct of the Defendant and, her motive can be seen from the said cancellation. As regards the presence of the Plaintiff in the office of the Sub-Registrar on 3/5/99 in the background of the facts mentioned above and considering the Affidavit Exhibit63, it would have to be held that the story put up by the Plaintiff appears to be more credible and therefore worth of acceptance. In so far as the receipt of telegram by the Plaintiff is concerned, which the Defendant tried to prove by adducing evidence of the Chief Telegram Master working in the Telegram Office at Gondia. The evidence of the said witness is of not much help to the Defendant as the said witness has in his deposition which was recorded on 14/2/2003 stated that he had no record to show that the telegram Exhibit 88 issued by the Defendant was delivered to the Plaintiff. Once the Defendant had chosen to lead evidence, then the presumption which she seeks to draw by having recourse to section 27 of the General Clauses Act cannot be resorted to. Once the Defendant had chosen to lead evidence, then the presumption which she seeks to draw by having recourse to section 27 of the General Clauses Act cannot be resorted to. In the instant case, the witness has specifically stated in his evidence that there was 10 record to show the delivery of the said telegram to the Plaintiff. Therefore though the fact of sending of said telegram has been proved through the said witness, the receipt of the telegram by the Plaintiff has not been proved. The reliance placed by the learned counsel for the Defendant on the Judgments in the cases of Bhaskaran v/s. Sankaran Vaidhyan Balan and anr; Armstrong Builders and Developers v/s Vishvanath Naik. (Supra) is in the facts of the present case is misplaced. For proving the factum of readiness, the same would have to be also seen from the financial wherewithal of the Plaintiff viz. as to whether the Plaintiff had the financial capacity to complete the transaction. For the said purpose, the Plaintiff has relied upon his Bank Account at Exhibit 71. The extract, which pertains to the Month of April 1999 showed that the amount of more than Rs.8 lakhs was available in the Plaintiff's account on 26/4/99. It is pertinent to note that not a single suggestion was put to the Plaintiff in his cross examination as regards his financial capacity. Therefore, it would have to be held that the Plaintiff had the financial wherewithal to complete the transaction even on 3/5/99 as there were no further entries for the month of April 1999 till 30/4/1999. From the said aspect also the readiness of the Plaintiff to perform his part of the contract is demonstrated. The factum of the readiness and willingness of the Plaintiff can also be seen from the fact that on the back side of the suit land the Plaintiff has put up a Salvex Plant and on the front side of the suit land he was running a weight bridge, the suit land which falls in between these two lands was therefore very much needed by the Plaintiff. The fact that vide Exhibits 75, 76, and 77 the Plaintiff had purchased lands at similar prices as in the instant suit, also supports the Plaintiff's case that he was always ready and willing to go ahead with the transaction. 12. The fact that vide Exhibits 75, 76, and 77 the Plaintiff had purchased lands at similar prices as in the instant suit, also supports the Plaintiff's case that he was always ready and willing to go ahead with the transaction. 12. On the aspect of the six months extension sought by the husband of the Defendant, which is the theory propounded by the Plaintiff, though it has come in the evidence of the Plaintiff that the said request was made by the husband of the Defendant i.e. D.W.3 only when the two were present i.e. the Plaintiff and the D.W.3, the case of the Plaintiff is corroborated by the evidence of the P.W.2 and P.W.3 v/z the brokers. As mentioned herein above, the said two witnesses were the independent witnesses as they were acting both for the Defendant as well as for the Plaintiff. In so far as the evidence of the Defendant's witnesses i.e. D.W.1 and D.W.3 is concerned, D.W.1, who is the son of the Defendant, has categorically admitted in his evidence that at the time of Agreement for Sale, he was not present. He also admitted that he did not know as to what talks had taken place between the Plaintiff and the Defendant at the time of Agreement of Sale. He also did not know whether at the time of Agreement of Sale, the responsibility of bringing IT certificate was taken by the Defendant. He also showed his unawareness as to whether there was any talk between the Plaintiff and the Defendant on the date of Agreement of Sale to have sale deed executed in two part so as to avoid I T clearance certificate. He also admitted that the suit transaction was fixed through brokers Patel and Upadhyay. Thereafter the said witness has contradicted himself by saying that in most of the sittings which took place prior to Agreement of Sale, he was present along with his father, Plaintiff and the broker. In so far as the evidence of D.W.3 i.e. the husband of the Defendant is concerned, his evidence can be said to have been adduced to patch up the lacunae in the evidence of D.W.1. The trial Court has therefore rightly held the said evidence of D.W.3 does not inspire confidence. Hence the evidence adduced on behalf of the Defendant does not aid the case of the Defendant in any manner. The trial Court has therefore rightly held the said evidence of D.W.3 does not inspire confidence. Hence the evidence adduced on behalf of the Defendant does not aid the case of the Defendant in any manner. The finding of the trial Court that delaying tactics and breach of the contract was on the part of the Defendant and not the Plaintiff on the application of the principle of preponderance of probabilities, in my view, cannot be faulted with. The case of the Defendant that hardship would be caused to her in terms of Section 20(c) of the Specific Relief Act as the values of the land in the area where the suit land is situated have appreciated considerably and therefore loss would be caused to her cannot be accepted. It has come in the evidence of D.W.1 that the sale deed was not executed by the Defendant as she wanted 15 to 20 times more amount than the consideration agreed upon. Therefore, the hardship which is sought to be pleaded is not of a kind where the person becomes landless, or on account of some disability, the Defendant is not in a position to complete the transaction. The hardship as can be seen is sought to be pleaded only on the ground that due to increase in prices, if the specific performance is granted to the Plaintiff, there would be a loss to the Defendant. It is well settled by catena of judgments of the Apex Court that merely because there is rise in prices would not disentitle the Plaintiff to the right to specific performance of agreement. A useful reference can be made to the judgments of the Apex Court reported in AIR 2004 SC 4472 in the matter of P. D'Souza v/s Shondrilo Naidu Para 41 of the said Judgment is material and is reproduced herein under: " 41 . It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that nonperformance of the agreement would not cause any hardship to the plaintiff. The defendant was a landlord of the plaintiff. He had accepted part payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. It is furthermore not a case that nonperformance of the agreement would not cause any hardship to the plaintiff. The defendant was a landlord of the plaintiff. He had accepted part payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August 1981, i.e. just two months prior to the institution of suit, he had accepted Rs.20,000 from the Plaintiff. It is, therefore, too late for the Appellant now to suggest that having regard to the escalation in price, the Respondent should be denied the benefit of the decree passed in his favour. Explanation 1 appended to Section 2D clearly stipulates that merely inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of subsection (2) of Section 20." and (2007) 10 SCC 231 in the matter of P.S. Ranakrishna Reddy v/s. M.K. Bhagyalakshmi and anr. Para 19 of the said judgment is material and is reproduced herein under: "19. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed herein before that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/ from the respondent. He with a view to defeat the lawful claim of Respondent No.1 had raised a plea of having executed a prior agreement for sale in respect of selfsame property in favour of his son-in-law who had never claimed any right thereunder or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of .m immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D' Souza (supra) and Jai Narain Parasrampuria (supra)]" 13. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of .m immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D' Souza (supra) and Jai Narain Parasrampuria (supra)]" 13. Though the Plaintiff is in my view entitled to the specific performance of the contract, it is also well settled by a catena of judgments of the Apex Court that ultimately the court would endeavour to balance the equities between the parties more so in a case where there is an appreciation in the value of the land. A useful reference can be made to the Judgment of this Court reported in 2010 (6) Mh. L.J 295. In the instant case the Plaintiff accepts the position that there is an increase in the value of the lands in Gondia pursuant to it being declared a District and pursuant to the Collector's office being situated at Patanga Maidan. However, the Plaintiff contends that the value is not such as is sought to be demonstrated by the Defendant by filing the affidavit in support of the Appeal. To the said Affidavit in support, the Defendant has annexed two Affidavits both dated 8th September 2009. The first affidavit is by one Jaswinder Singh S/o Harbansh Singh Bhatia resident of Rajnandgaon, who has offered to purchase the suit property for Rs.1,80,00,000/- (Rupees One Crore Eight Lakhs only) and is ready to to pay the amount as per the schedule mentioned in the said Affidavits. The second affidavit is of one Nirmal Jain S/o Nemichand Jain, also a resident of Rajnandgaon who has offered to purchase the suit property for Rs.1,71,00,000/ - (Rupees One Crore Seventy one lakhs). It is the case of the Plaintiff that the said two affidavits cannot be considered as the said two affidavits have been filed by the persons who are known to the Defendant. In response to the said two affidavits, the Plaintiff has filed his affidavit dated 2/9/ 2009 to which is annexed the rates mentioned in the ready reckoner for the area in which the suit land is situated. According to the Plaintiff, the rate applicable to the lands where the suit land is situated is Rs.180/- per sq.metre in the year 2008. According to the Plaintiff, the rate applicable to the lands where the suit land is situated is Rs.180/- per sq.metre in the year 2008. The said information has been provided to the Plaintiff by the Sub-Registrar by his letter dated 1.9.2009. The Plaintiff has also annexed the extract of the ready reckoner published by the State of Maharashtra. As per the ready reckoner rates, the valuation of the lands in the vicinity of the suit property is at Rs.180/- per sq.metre in the year 2008. The Plaintiff has mentioned in his affidavit that he is ready to pay the rate as mentioned in the ready reckoner. As the rates in the ready reckoner are the rates fixed by the State of Maharashtra for payment of stamp duty. It will have to be borne in mind that the Plaintiff has waited since the year 1999, in my view, therefore, the equities in the facts and circumstances of the present case can be balanced between the parties if the Plaintiff is directed to pay at the rate mentioned in the ready reckoner i.e. Rs. 180/per sq.metre for the suit land. 14. The above First Appeal is therefore dismissed. However, the decree is modified to the following extent: The Defendant is hereby directed to execute the sale deed pertaining to the suit property as described in Para 2 of the Plaint in favour of the Plaintiff after receiving balance consideration calculated at the rate of Rs. 180 per sq.metre by deducting the earnest amount of Rs. 1,01,000/- already paid by the Plaintiff as well as the amount of Rs.6 lakhs deposited by the Plaintiff on 26/3/2003 as per his affidavit dated 2/9/2009 within three months from date. The interest accrued on the said sum of Rs.6 lakhs would be excluded in computing the balance consideration. The Defendant would be entitled to withdraw the amount of Rs.6 lakhs deposited by the Plaintiff on 26/9/2003 in the Trial Court pursuant to the impugned decree including the interest accrued thereon. The balance consideration amount calculated at the rate of Rs.180/per sq. metre would be paid by the Plaintiff by calculating interest at the rate of 15% per annum on such balance amount from the date of the filing of the above Appeal till the date of the present judgment. The balance consideration amount calculated at the rate of Rs.180/per sq. metre would be paid by the Plaintiff by calculating interest at the rate of 15% per annum on such balance amount from the date of the filing of the above Appeal till the date of the present judgment. Any default on the part of the Defendant in executing the sale deed as per this Decree, would entitle the Plaintiff to deposit the said balance consideration amount in the trial Court and would thereafter be at liberty to get the sale deed executed through Court but at the costs of the Defendant. Parties to bear their respective costs. Decree be drawn up accordingly. First appeal dismissed.