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2013 DIGILAW 787 (KAR)

N. Rajani @ Ranjini v. Krishna

2013-07-09

A.N.VENUGOPALA GOWDA

body2013
JUDGMENT 1. Plaintiff is the appellant and the respondents are the defendants. The suit was one for passing a decree of specific performance of an agreement of sale dated 11.06.1994 (Ex.P1). Suit having been decreed in part, the prayer for specific performance of contract as well as for permanent injunction having been rejected and the defendants having been only directed to pay Rs.24,000/- with interest at 9% per annum from the date of suit till the date of realization, feeling aggrieved, the plaintiff has filed this appeal. 2. For convenience, the parties are referred to by their rank in the Trial Court. On 11.06.1994, an agreement of sale (Ex.P1) was entered into between the plaintiff and defendants, whereunder, the defendants agreed to sell and the plaintiff agreed to purchase the suit site for sale consideration amount of Rs.24,000/-. Plaintiff filed the suit on 02.08.2003, to pass a decree of specific performance against the defendants. The defendants having not appeared in response to the suit summons, were placed ex parte. Plaintiff got herself examined as PW.1 and marked Exs.P1 to P4. The Trial Court finding that though the agreement of sale is of the year 1994, the plaintiff having not chosen to issue a legal notice before filing of the suit or at any point of time, called upon the defendants to execute a registered sale deed in her favour and that there is inordinate delay and laches on the part of the plaintiff in approaching the Court to enforce the agreement of sale at Ex.P1 and finding that there was no refusal on the part of the defendants to perform their part of obligation, held that the plaintiff is not entitled to the relief of specific performance of contract. It also held that the plaintiff has failed to prove her readiness and willingness to perform her part of obligations from the date of agreement till the date of filing of the suit. As a result, while rejecting the prayer for specific performance of the contract and permanent injunction, suit was decreed for the alternate relief of refund of Rs.24,000/- with interest from the date of the suit. The defendants have not assailed the said decree. 3. As a result, while rejecting the prayer for specific performance of the contract and permanent injunction, suit was decreed for the alternate relief of refund of Rs.24,000/- with interest from the date of the suit. The defendants have not assailed the said decree. 3. Sri M.S. Rajendra Prasad, learned Senior advocate, appearing for the appellant contended that the agreed sale consideration amount having been paid to the defendants, the Trial Court has erred in denying the relief of specific performance of contract. Learned counsel submitted that the refusal can be inferred by the fact that the defendants did not appear in the Trial Court and, merely because there is no express refusal, the Trial Court is unjustified in holding that the plaintiff is not entitled to the relief of specific performance. Learned counsel placed reliance on the decisions in the cases of Mademsetty Satyanarayana Vs. G. Yelloji Rao and others, AIR 1965 SC 1405 , Devendra Basappa Doddannavar Vs. Smt. Sonubai Tuljansa Kosandal and others, AIR 1971 Mysore 217, Prakash Chandra Vs. Angadlal and others, AIR 1979 SC 1241 and Prakash Chandra Vs. Narayan, AIR 2012 SC 2826 . Learned counsel submitted that in view of the facts and circumstances of the case, interference in the matter is warranted. 4. Perused the record. In view of the submissions made by Sri. M.S. Rajendra Prasad, point for consideration is 'whether the Trial Court is justified in rejecting the prayer of the plaintiff for grant of relief of specific performance?' 5. Ex.P1 is the agreement of sale dated 11.06.1994. Plaintiff has paid to the defendants the agreed sale consideration amount of Rs.24,000/-. Ex.P1 does not contain any recital with regard to time for performance of contract. Ex.P2 is an affidavit of the defendants. Ex.P3 is a General Power of Attorney executed by the defendants in favour of the plaintiff. Ex.P4 is certified copy of a sale deed. 6. Plaintiff has paid to the defendants the agreed sale consideration amount of Rs.24,000/-. Ex.P1 does not contain any recital with regard to time for performance of contract. Ex.P2 is an affidavit of the defendants. Ex.P3 is a General Power of Attorney executed by the defendants in favour of the plaintiff. Ex.P4 is certified copy of a sale deed. 6. In the plaint, it has been stated that no time limit was fixed within which the obligations are required to be fulfilled and the defendants are not willing to perform their part of the obligation and the only obligation on the part of the plaintiff is to get the absolute sale deed executed and when the plaintiff approached the defendants to execute the sale deed, the defendants postponed the execution of the sale deed on one pretext or the other and that the defendants did not come forward to complete the transaction and that they are not ready and willing to perform their part of contract and that the cause of action for the suit arose on 11.06.1994, 28.06.1994 and 'de die in diem'. 7. Indisputably, after the execution of the agreement-Ex.P1, the plaintiff did not issue any notice to the defendants to execute the sale deed and complete the sale transaction. The plaint is vague with regard to the plaintiff having approached the defendants to execute the sale deed and the defendants having postponed the execution of the sale deed. Other than the self serving testimony of the plaintiff, there is no other credible evidence. Had the plaintiff been ready and willing to obtain the sale deed after 11.06.1994 and if the defendants had not come forward to complete the transaction, nothing prevented the plaintiff from making a demand in writing to execute the sale deed. 8. Article 54 of the Limitation Act prescribes three years as the period within which a suit for specific performance can be filed and the period calculated from the date specified in the agreement for performance or in the absence of any such stipulation, within three years from the date the performance was refused. 9. From the decision in the case of Smt. Chand Rani (dead) by L.Rs., Vs. 9. From the decision in the case of Smt. Chand Rani (dead) by L.Rs., Vs. Smt. Kamal Rani (dead) by L.Rs., 1993(1) SCC 519 , it can be seen that the Court should look into all relevant circumstances, including the time limit specified in the agreement and determine as to whether its discretion to grant specific performance should be exercised. 10. In the case of Mademsetty Satyanarayana (supra), Apex Court has held that, mere delay extending upto period of limitation is not sufficient ground to refuse relief and that field of discretion cannot be defined but Court would not grant relief, if it would be inequitable. 11. In the case of Devendra (supra), it has been held that, when the contract is for the sale of an immovable property, the vendor must give reasonable notice requiring the performance within a definite time and the fact that the plaintiff has asked for the alternative relief, which is permissible under S.19 does not prejudice his right to get a decree for specific performance. 12. In the case of Prakash Chandra (supra), it has been held that the ordinary rule is, that specific performance should be granted and it ought to be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate relief. 13. In the case of Prakash Chandra Vs. Narayan, AIR 2012 SC 2826 , with reference to the provision under S.20(2)(b) of Specific Relief Act, 1963, it has been held that being a question of fact, the first Appellate Court without framing an issue with regard to hardship to the defendant ought not to reverse the finding of the Trial Court while concurring with it on all other issues with regard to the appellant's entitlement to the relief of specific performance of contract. 14. In this case, the suit property is a site, situated at Vidya Nagar, which is now part of Bangalore City. The agreement-Ex.P1 was entered into on 11.06.1994. The agreement did not contain the period within which the sale transaction should be completed. The plaintiff having paid the agreed amount, ought not to have kept quiet for more than nine years and filed the suit on 02.08.2003, without even making a demand in writing for specific performance of contract. The agreement-Ex.P1 was entered into on 11.06.1994. The agreement did not contain the period within which the sale transaction should be completed. The plaintiff having paid the agreed amount, ought not to have kept quiet for more than nine years and filed the suit on 02.08.2003, without even making a demand in writing for specific performance of contract. The period between the date of execution of Ex.P1 and the date on which the suit was instituted is more than nine years. The plaintiff having paid the sale consideration amount should have purchased the stamp paper and sought completion of the sale transaction within a reasonable period from the date Ex.P1 was executed i.e., 11.06.1994. The plaintiff has not shown the readiness and willingness to complete the sale transaction. 15. There is not only delay on the part of the plaintiff, but there is total inaction on her part for more than nine years. A person who has entered into an agreement to purchase an item of immovable property and paid consideration amount shown in the document, if was ready and willing to complete the said sale transaction, would not have kept quiet for more than 9 years. The delay has not been explained. The delay has brought about a situation where it would be inequitable to grant the relief of specific performance of the contract to the plaintiff. Keeping in view the principle enunciated by the Apex Court in the case of Chand Rani (supra), there being no time limit specified in Ex.P1, the plaintiff ought to have purchased the stamp paper and completed the sale transaction within a reasonable time and the reasonable time should be determined by looking into all the surrounding circumstances. There being no explanation offered by the plaintiff for inaction on her part for more than 9 years, the Trial Court is justified in rejecting the prayer for specific performance of the contract. The view taken by the Trial Court, in view the facts and circumstances of the case is sound. The record of the case has been correctly appreciated and the findings are not perverse or illegal. Hence, there is no scope for modifying the impugned Judgment and Decree. In the result, the appeal being devoid of merit is dismissed.