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2012 DIGILAW 129 (CHH)

KEDARNATH TIWARI v. RAJU SINGH THAKUR

2012-05-02

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT G. Minhajuddin, J 1. This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 24.4.2008 passed by II Additional District Judge (FTC), Korba, in Civil Suit No.24A/06, whereby the suit filed by the respondent/plaintiff for specific performance of contract of sale has been decreed. 2. The following facts are not in dispute:– "That the appellant/defendant and the respondent/plaintiff entered into an agreement of sale dated 12.12.2002 (Ex.P/2) in respect of land belonging to the appellant, bearing Khasra No.250/1, area 0.34 ½ acres, P.C.No.4, R.I.C. Korba, Tahsil & District Korba, for a sum of Rs.5,10,00/- and Rs.5,000/- was given by the respondent as earnest money to the appellant. As the said land was a diverted land and for the purpose of its sale, permission of the Collector, Korba was necessary, therefore, an application for grant of permission from the Collector, Korba was submitted by the appellant on 17.2.2003. On 2.4.2003, on demand of the appellant, a further sum of Rs.20,000/- in cash and Rs.1,05,000/- through cheque was given by the respondent to the appellant and an affidavit (Ex.P/1) in this regard was sworn by the appellant and the same was handed over to the respondent. However, the application for grant of permission was rejected by the Collector, Korba on 21.9.2004. The appellant had sent a registered notice dated 28.12.2005 to the respondent intimating him about the rejection of his application as well as about the cancellation of the agreement of sale dated 12.12.2002 by the appellant/ defendant." 3. Case of the respondent/plaintiff, in brief, is that on 12.12.2002 he entered into an agreement of sale with the appellant in respect of his (appellant's) land situated at Village-Podibahar, bearing Khasra No.250/1, area 0.34 ½ acres, P.C.No.4, R.I.C. Korba, Tahsil & District Korba, for a sale consideratior of Rs.5,10,000/- and on the same day a sum of Rs.5,000/- was given by the respondent to the appellant as earnest money and an agreement of sale (Ex.P/2) was executed by them. As the said land was a diverted land, therefore, for the purpose of its sale, permission of the Collector, Korba was necessary. As the said land was a diverted land, therefore, for the purpose of its sale, permission of the Collector, Korba was necessary. As per conditions incorporated in the agreement of sale (Ex.P/2) dated 12.12.2002, it was the duty of the appellant/seller to obtain the required permission from the Collector, Korba and after that, to inform the respondent/purchaser about the same and thereafter, within 15 days, the respondent had to pay the balance amount and get the sale deed executed and registered in his favour. Subsequently, on demand of the appellant, that a further sum of Rs.1,05,000/- through cheque and Rs.20,000/- in cash was given on 2.4.2003 by the respondent to the appellant. On the same date i.e. 2.4.2003, the appellant had sworn an affidavit (Ex.P/1) before the notary and handed over the same to the respondent. As such, till 2.4.2003, the respondent had paid a total sum of Rs.1,30,000/- to the appellant towards the sale price of Rs.5,10,000/- and the balance amount of Rs.3,80,000/- was remaining to be paid. After paying Rs.1,30,000/- to the appellant, the respondent was confident that the appellant after obtaining the necessary permission from the Collector, Korba, will inform him about the same and after paying the balance amount of Rs.3,80,000/-, he (respondent) will get the sale deed of the said land executed and registered in his favour. 4. However, the appellant by registered notice dated 28.12.2005 (Ex.P/3) informed the respondent that on account of non-cooperation on the part of the respondent that the application for permission filed before the Collector, Korba was rejected on 21.9.2004 and also about the fact that he (appellant) has cancelled the agreement of sale dated 12.12.2002 (Ex.P/2). By the said notice, the respondent was asked to take back his amount of Rs.1,30,000/- alongwith simple interest at the bank rate, as per terms and conditions of the agreement. After receiving the notice dated 28.12.2005, the respondent sent his reply dated 2.1.2006 (Ex.P/4) to the appellant intimating him to take necessary steps in pursuance of the agreement of sale dated 12.12.2002 for obtaining the required permission of the Collector, Korba for sale of the land involved in the agreement of sale. After receiving the notice dated 28.12.2005, the respondent sent his reply dated 2.1.2006 (Ex.P/4) to the appellant intimating him to take necessary steps in pursuance of the agreement of sale dated 12.12.2002 for obtaining the required permission of the Collector, Korba for sale of the land involved in the agreement of sale. Thereafter, the respondent/purchaser again sent a notice (Ex.P/5) to the appellant/seller through his counsel on 4.2.2006 requesting the appellant to obtain the necessary permission of the Collector, Korba and to execute and register the sale deed after receiving the balance amount of Rs.3,80,000/- in favour of the respondent. This notice dated 4.2.2006 (Ex.P/5) was replied to by the appellant through notice dated 16.2.2006 (Ex.P/6) informing the respondent that as the application for permission has been rejected on account of non-cooperation of the respondent, therefore, the appellant has cancelled the agreement of sale dated 12.12.2002 and as such, the respondent has no right to initiate any proceedings in respect of the land belonging to the appellant. It has been averred by the respondent that he has all along been ready and willing to perform his part of the contract and was having the balance amount of Rs.3,80,000/- with him to be paid to the appellant, but the appellant looking to the increase in the rate of lands at Korba, with the intent to sell the land in question at a higher price to some other person, has malafidely cancelled the agreement of sale dated 12.12.2002 (Ex.P/2). With these averments, the respondent/plaintiff filed a suit for specific performance of the contract of sale dated 12.12.2002 (Ex.P/2). 5. Case of the appellant/defendant, in brief, is that an agreement of sale dated 12.12.2002 (Ex.P/2) was entered into between the appellant and the respondent in respect sale of 0.34 ½ acres of land belonging to the appellant, situated at Village-Podibahar, bearing Khasra No.250/1, P.C.No.4, R.I.C. Korba, Tahsil & District Korba, for a sale consideration of Rs.5,10,000/- and a sum of Rs.5,000/- was paid as earnest money on the same day by the respondent to the appellant. Subsequently, on 2.4.2003, a further sum of Rs.l,25,000/-(Rs.l,05,000/- through cheque and Rs.20,000/- in cash) was paid by the respondent to the appellant and an affidavit (Ex.P/1) was sworn by the appellant on the same day and it was handed over to the respondent. Subsequently, on 2.4.2003, a further sum of Rs.l,25,000/-(Rs.l,05,000/- through cheque and Rs.20,000/- in cash) was paid by the respondent to the appellant and an affidavit (Ex.P/1) was sworn by the appellant on the same day and it was handed over to the respondent. As the said land was a diverted land, therefore, for the purpose of its sale, permission of the Collector, Korba was necessary. Accordingly, the appellant moved an application on 17.2.2003 before the Collector, Korba for grant of necessary permission. It was well within the knowledge of the respondent/purchaser that before grant of permission by the Collector, statements on oath of the intending seller and purchaser have to be recorded. Moreover, the appellant had also informed the respondent in this regard, but despite requests, the respondent did not turn up before the Tahsildar for recording his statement on oath, to whom the case was sent by the Collector, Korba through Sub Divisional Officer, Korba for enquiry and report. Therefore, the Tahsildar, on account of non-appearance of the respondent, recommended for rejection of the application and sent the same to the Collector through SDO, Korba, who, in turn, agreeing with the recommendation of the Tahsildar as well as of the SDO, Korba, rejected the application of the appellant for permission on 21.9.2004. 6. It has been averred by the appellant/defendant that on 12.12.2002, since he was in dire need of money to meet the expenses likely to be incurred in the marriages of his sons as well as for settling them in life, therefore, he had entered into an agreement of sale of the suit land with the respondent and was hopeful that the required permission will be obtained within a very short time and he will be paid the balance amount of Rs.3,80,000/- to meet the expenses likely to be incurred. However, on account of non-cooperation on the part of the respondent as he did not appear before the Tahsilar, Korba for getting his statement recorded, that the application for permission filed) the appellant on 17.2.2003 was rejected by the Collector on 21.9.2004. However, on account of non-cooperation on the part of the respondent as he did not appear before the Tahsilar, Korba for getting his statement recorded, that the application for permission filed) the appellant on 17.2.2003 was rejected by the Collector on 21.9.2004. The appellant through notice dated 28.12.2005 (Ex.P/3) informed the respondent that his (appellant's) application for permission has been rejected on account of non-cooperation of the respondent and therefore, he (appellant) has cancelled the agreement of sale dated 12.12.2002 and the respondent may take back his amount of Rs.1,30,000/- alongwith simple interest at the bank rate as per terms and conditions incorporated in the agreement of sale dated 12.12.2002 (Ex.P/2) as well as in his affidavit (Ex.P/1) dated 2.4.2003. Since the respondent was not having the balance amount, therefore, with intent to delay the matter he was not taking interest in obtaining permission and was not cooperating, on account of which the application of the appellant for permission was rejected by the Collector. The respondent by his conduct has forfeited his right under the agreement of sale (Ex.P/2) and the appellant is not bound to execute the sale deed in favour of the respondent after receiving the balance amount of Rs.3,80,000/-. 7. Learned trial Court, after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment decreed the suit of the respondent/plaintiff. 8. Heard learned counsel for the parties, perused the record of the trial Court as also the impugned judgment. 9. The points for determination in this appeal under Order 41 Rule 31 of the CPC are as follows: (i) Whether the respondent/purchaser was at all times ready and willing to perform his part of the contract? (ii) Whether the respondent/purchaser had extended all possible cooperation expected from him in obtaining the necessary permission of the Collector, Korba? 10. It is not in dispute that an agreement of sale (Ex.P/2) was executed between the parties on 12.12.2002 and a sum of Rs.5,000/- was given as earnest money and subsequent to this, a further sum of Rs.1,25,000/- was given to the appellant/seller on 2.4.2003, in respect of which an affidavit (Ex.P/1) was sworn by the appellant and handed over to the respondent. From perusal of the affidavit dated 2.4.2003 (Ex.P/1) of the appellant/seller, it is found that the application for permission was filed by the appellant before the Collector, Korba on 17.2.2003 and the same was rejected by the Collector on 21.9.2004. 11. The respondent has filed order sheet (Ex.P/7) of the case, which was pending before the Collector, Korba for grant of permission in respect of the suit land. The respondent has also filed Ex.P/8 and P/9, which are certified photocopies of the application and the affidavit filed by the appellant in support of the application before the Collector, Korba. From perusal of Ex.P/8 and P/9, it is found that the appellant has specifically mentioned in his application as well as in his affidavit, which was filed in support of the application, that his financial condition is extremely bad and he is selling the suit land to meet the expenses likely to be incurred in the marriages of his sons as well as for settling them in life. 12. Appellant/seller Kedarnath Tiwari (DW-l) has stated that he had filed an application for permission before the Collector, Korba on 17.2.2003, but on account of non-cooperation from the side of the respondent/purchaser that the said application was rejected on 21.9.2004 because the respondent had not appeared before the Tahsildar, Korba for getting his statement recorded on oath. It is not in dispute that on 2.4.2003, a further sum of Rs.1,25,000/- was paid by the respondent to the appellant and an affidavit (ExP/1) was got sworn by the appellant and the same was handed over to the respondent on 2.4.2003 itself. From perusal of the affidavit (Ex.P/1) dated 2.4.2003 of the appellant, which has been filed by the respondent, it is found that the fact of having filed an application for permission before the Collector has been mentioned in the said affidavit (Ex.P/1). This finds corroboration from the documents Ex.P/7 to P/9, from which it stands proved that an application for permission was filed before the Collector, Korba by the appellant on 17.2.2003 alongwith an affidavit and the same was rejected on 21.9.2004 on the ground that the seller as well as the purchaser are not taking interest in the proceedings. This finds corroboration from the documents Ex.P/7 to P/9, from which it stands proved that an application for permission was filed before the Collector, Korba by the appellant on 17.2.2003 alongwith an affidavit and the same was rejected on 21.9.2004 on the ground that the seller as well as the purchaser are not taking interest in the proceedings. From perusal of the order sheet (Ex.P/7), it is found that although it was ordered on 28.2.2004 that the respondent/purchaser be summoned, but on the subsequent date i.e. 17.3.2004 in the absence of the appellant/seller, he was proceeded ex-parte and it was recommended by the Tahsildar, Korba that as the appellant/seller is not taking interest in the proceedings, therefore, the application may be rejected, which ultimately was rejected by the Collector on 21.9.2004 agreeing with the recommendation of the Tahsildar and the SDO, with an observation that both the seller as well as the purchaser are not taking interest. 13. It is not in dispute that the suit land was agreed to be sold for a sale consideration of Rs.5,10,000/- and an agreement of sale dated 12.12.2002 was executed between the parties, in which one of the conditions was that as the suit land is a diverted land, therefore, it will be the duty of the appellant/seller to obtain the necessary permission from the Collector, Korba and after obtaining permission, he was to inform the respondent/purchaser about the same and thereafter within 15 days, the respondent was to get the sale deed executed and registered in his favour after paying the balance amount to the appellant. The appellant/seller in pursuance of the agreement of sale dated 12.12.2002 had moved an application for permission on 17.2.2003 and the same was within the knowledge of the respondent, as is evident from the affidavit (Ex.P/1) of the appellant/seller. The respondent/purchaser, in para-19 of his statement, has admitted that on application for permission being presented before the Collector, the same is sent for enquiry and during that enquiry, statements of both the seller as well as the purchaser are recorded on oath by the revenue officer conducting enquiry. The fact of the appellant/seller having moved an application for permission before the Collector was well within the knowledge of the respondent, at least since 2.4.2003 when the affidavit (Ex.P/1) was sworn by the appellant/seller and the same was handed over to the respondent. The fact of the appellant/seller having moved an application for permission before the Collector was well within the knowledge of the respondent, at least since 2.4.2003 when the affidavit (Ex.P/1) was sworn by the appellant/seller and the same was handed over to the respondent. Despite this, till 28.12.2005 when notice (Ex.P/3) was sent by the appellant/seller to the respondent/purchaser intimating him about the rejection of the application as well as cancellation of the agreement of sale (Ex.P/2), that the respondent/ purchaser had neither enquired, nor had taken any steps to ascertain the status of the proceedings, which were initiated by the appellant/seller for grant of permission for selling the suit land. 14. As per agreement of sale (Ex.P/2), out of the sale price of Rs.5,10,000/- agreed upon between the parties, only a sum of Rs.5,000/- was paid on 12.12.2002 and as per affidavit (Ex.P/1), Rs.1,25,000/- was paid on 2.4.2003. As such, till 2.4.2003 only a sum of Rs.1,30,000/- out of Rs.5,10,000/- i.e. about 25% of the sale consideration was paid to the appellant/ seller. From the application (Ex.P/8) and the affidavit (Ex.P/9), which was filed in support of the said application by the appellant/seller on 17.2.2003, it is clear that as the financial condition of the appellant/seller was not good and he was in dire need of money for meeting the expenses likely to be incurred in the marriages of his sons and for settling them in life, that the appellant on 12.12.2002 had agreed to sell the suit land for Rs.5,10,000/- and out of which, till 2.4.2003 he had received only Rs.1,30,000/-. 15. The respondent/purchaser has himself averred in his plaint as well as stated in his statement that as the prices of the lands in the area where the suit land is situated have increased considerably, therefore, the appellant/ seller with a malafide intention to sell the suit land at the increased rate to some other person, has unauthorizedly cancelled the agreement of sale dated 12.12.2002 and has refused to execute and register the sale deed after obtaining the balance amount of Rs.3,80,000/-. 16. In the proceedings, which were initiated by the appellant/seller for obtaining permission from the Collector, Korba, a report regarding valuation of the suit property was also called by the Tahsildar from the concerned Patwari, which is Ex.P/14 and the same has been filed by the respondent/purchaser. 16. In the proceedings, which were initiated by the appellant/seller for obtaining permission from the Collector, Korba, a report regarding valuation of the suit property was also called by the Tahsildar from the concerned Patwari, which is Ex.P/14 and the same has been filed by the respondent/purchaser. From perusal of Ex.P/14, it is found that as per guidelines issued for the year 2003-04 regarding valuation of the land, the value of the suit land was Rs.8,44,710/- in the year 2003 itself. 17. It is a settled principle of law that the relief of specific performance of contract of sale of immovable property is a discretionary and equitable relief. It is also well settled that a person seeking equitable relief should approach the Court with clean hands. 18. Although as per agreement of sale (Ex.P/2) dated 12.12.2002, it was the responsibility of the appellant/seller to obtain the necessary permission from the Collector, Korba, but as per admission made by respondent/purchaser Raju Singh Thakur (PW-1) in para-19 of his statement, it was within his knowledge that before granting permission, statements of both the seller as well as the purchaser are recorded on oath by the revenue officer conducting enquiry before submitting his report to the Collector. It is not in dispute that pursuant to the agreement of sale dated 12.12.2002, the appellant/seller had moved an application before the Collector, Korba for obtaining the necessary permission on 17.2.2003 and the same was brought to the notice of the respondent/purchaser through affidavit dated 2.4.2003 (Ex.P/1) of the appellant/seller. Even if it is assumed that the appellant/seller after submitting the application (Ex.P/8) and the affidavit (Ex.P/9) was not taking interest in the proceedings, which were initiated by him for obtaining permission, in that case also, on 2.4.2003 after learning about the fact that the appellant/seller has moved an application, the respondent/ purchaser had made no effort to enquire about the progress of the same till 28.12.2005 when notice (Ex.P/3) was issued by the appellant/seller to the respondent/purchaser, especially when as per one of the conditions enumerated in the affidavit (Ex.P/1) of the appellant/seller, it was provided that if the appellant/seller fails to obtain the required permission within one year from 2.4.2003, then he (appellant) will be liable to refund the amount of Rs.1,30,000/-, which he has received as earnest money, alongwith simple interest at the prevailing bank rate to the respondent/purchaser. 19. 19. So far as allegation of the respondent/purchaser that the appellant/ seller with a view to sell the suit land at a higher price to some other person had malafidely refused to execute and register the sale deed in pursuance of the agreement of sale dated 12.12.2002, is concerned, as per the evidence adduced, the suit land is still recorded in the name of the appellant/seller and no evidence has been adduced on behalf of the respondent/purchaser to show that after execution of the agreement of sale dated 12.12.2002, the appellant had ever attempted to sell the suit land at the enhanced rate to some other person. In view of this, the aforesaid allegation is baseless and ill-founded. 20. Thus, from the conduct of the respondent/purchaser, it can safely be inferred that after giving only about 25% of the sale consideration to the appellant/seller, either he was not having the balance sale price for payment to the appellant or with the malafide intention of purchasing the suit land after an exorbitant increase in the land value at the rate agreed upon as per agreement of sale dated 12.12.2002 that he was deliberately delaying the matter. 21. In view of the above discussion of the evidence, it cannot be said that the respondent/purchaser was at all times ready and willing to perform his part of the contract and has approached the Court seeking equitable relief of specific performance of contract of sale with clean hands. In the totality of the facts and circumstances, it would be unjust and inequitable to the appellant/seller to direct him to execute and register the sale deed in respect of the suit land in favour of the respondent/purchaser at the rate, which was agreed upon on 12.12.2002. As such, it cannot be said that the refusal on the part of the appellant/seller to execute and register the sale deed as per agreement of sale dated 12.12.2002 (Ex.P/2) in favour of the respondent/purchaser was unjustified. The respondent/purchaser is not entitled to the relief of specific performance of contract and the learned trial Court has definitely committed a manifest error of law and fact in decreeing the suit of the respondent/plaintiff, which deserves to be set aside. 22. The respondent/purchaser is not entitled to the relief of specific performance of contract and the learned trial Court has definitely committed a manifest error of law and fact in decreeing the suit of the respondent/plaintiff, which deserves to be set aside. 22. As regards refund of the earnest money of Rs.1,30,000/- alongwith interest, the respondent/plaintiff/purchaser has in clause (e) of Para-14 of the plaint has prayed for grant of any other relief, which the Court deems fit and proper. As such, the respondent/plaintiff has not specifically claimed the relief of refund of earnest money in the alternate in case his claim for specific performance is refused. As per provisions of clause (b) of Section 22(1) and Section 22(2), the relief of refund of earnest money can only be granted if the same has been specifically claimed in the alternate in case the main relief of specific performance of contract of sale is refused. As such, since the respondent/plaintiff/purchaser has not specifically claimed the relief of refund of earnest money in the alternate, therefore, the same cannot be granted in view of the bar imposed by the abovementioned provisions. 23. In the result, the appeal is allowed. The impugned judgment and decree dated 24.4.2008 passed by the Second Additional District Judge (FTC), Korba in Civil Suit No.24A/06 are hereby set aside. Consequently, the suit of the respondent/plaintiff stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 24. Additional Registrar (Judicial) is directed to draw up a decree accordingly. Appeal Allowed.