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Gauhati High Court · body

2014 DIGILAW 603 (GAU)

PRATIBHA DEKA v. AKHIL CH DEKA

2014-06-06

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (CAV) This second appeal has been preferred by the defendant in Title Suit No. 369/1996 of the Court of learned Civil Judge (Jr. Divn.) No.1, Guwahati. Suit of the plaintiff for Specific Performance of Contract was decreed by the learned Trial Court on 07.09.2002 and an appeal preferred there-against by the defendant in Title Appeal No. 52/2002 of the Court of learned Civil Judge (Sr. Divn.) No. 3 at Guwahati was dismissed on 03.02.2004. Challenging the aforesaid two judgments of the learned Courts below, the defendant has approached this Court by filing this second appeal. 2. The sole respondent, as plaintiff, instituted T.S. No. 369/1996 in the court of learned Civil Judge (Jr. Divn.) No.1, Guwahati alleging that defendant being absolute owner in possession of a plot of land measuring 1 Katha 10 Lechas covered by Dag No. 440 of K.P. Patta No. 278 of village Japorigog under Mouza Beltola, Guwahati entered into an agreement with the plaintiff on 13.05.1993 agreeing to sell the aforesaid plot of land to the plaintiff at a consideration of Rs. 15,000/- in all. On the date of agreement plaintiff paid Rs. 5,000/- towards advance and it was agreed to by the parties in the written agreement that the balance amount would be paid at the time of execution and registration of the sale deed. It is pleaded by the plaintiff that when he approached the defendant with Rs. 10,000/- and requested him to execute the deed with respect to the land described in Schedule B to the plaint, the defendant ‘delayed the matter with some baseless plea’. Compelled, the plaintiff issued registered notice through lawyer on the defendant on 17.02.1994 asking him to accept the balance sum and to execute a registered sale deed within 15 days of receipt of the notice. But the defendant went on delaying the matter. Under such circumstances, the plaintiff filed suit for Specific Performance of Contract against the defendant. Plaintiff prayed that appropriate decree be passed directing the defendant to accept the balance sum of Rs. 10,000/- and thereupon to execute and register a valid sale deed with respect to Schedule B land within fixed period and on his failure to do so, plaintiff be permitted to get the deed executed through court in accordance with law. 3. Plaintiff prayed that appropriate decree be passed directing the defendant to accept the balance sum of Rs. 10,000/- and thereupon to execute and register a valid sale deed with respect to Schedule B land within fixed period and on his failure to do so, plaintiff be permitted to get the deed executed through court in accordance with law. 3. The defendant appeared and submitted written statement denying execution of the agreement as well as receipt of money as advance for sale of the land described in Schedule B to the plaint. According to the defendant, plaintiff is the son of his own maternal uncle and asked for his signature on blank stamp paper and two cartridge papers to be used in regard to their landed property at village and subsequently converted the same papers into agreement for sale by perpetrating fraud on the defendant. The defendant further stated that he had made payment of Rs.10,000/- to the plaintiff on 24.05.1993 and obtained receipt. It is the further case of the defendant that land described in Schedule A to the plaint of which Schedule B is a part, is the property of the defendant’s family and there is no possibility of subdivision of the same. The case of the defendant was that there was no talk of sale of any land at all not to speak of the land described in Schedule B to the plaint. With these averments, defendant prayed for dismissal of the suit with cost. 4. The learned Trial court framed as many as 4 (four) issues on the basis of the rival contentions of the parties and the same are quoted below: i) Whether the suit is barred by limitation? ii) Whether the Deed of agreement dated 13.05.1993 is a fraudulent one? iii) Whether the plaintiff paid Rs. 5,000/- as advance in pursuance of the Deed of Agreement for sale and whether the plaintiff is entitled to a decree for execution of the sale deed upon payment of the balance consideration? iv) To what relief, if any, the parties may be entitled? Both the parties examined 4 (four) witnesses each and adduced documents to prove their respective cases. 5. iv) To what relief, if any, the parties may be entitled? Both the parties examined 4 (four) witnesses each and adduced documents to prove their respective cases. 5. Learned Trial court on perusal of the evidence and the pleadings of the parties by judgment dated 07.09.2002 held that the suit is not barred by limitation, that the agreement is not a fraudulent one, that plaintiff paid Rs. 5,000/- as advance for purchase of Schedule B land on the basis of agreement dated 13.05.1993 for sale of the said land and subsequently he is entitled to a decree for Specific Performance of Contract. By the decree, the learned Trial court directed the defendant to execute sale deed within 1 (one) month from the date of order failing which plaintiff was given liberty to execute the sale deed after depositing the balance amount and requisite court fee in the court. Aggrieved by the aforesaid judgment passed by the learned Trial court, the defendant preferred T.A. No. 52/2002 in the Court of learned Civil Judge (Sr. Divn.) No. 3 at Guwahati. The appeal stood dismissed on 03.02.2004 upholding the finding of the learned Trial court. 6. The learned Trial court did not believe that Ext. Ka, money receipt, was issued by the plaintiff. It was found to be contradictory one because of variation of oral testimony of DW 2 and DW 3 on one side and DW 4 on the other side. The evidence led by DW 2 and DW 3 as to giving signature on blank stamp paper and cartridge papers on 13.05.1993 was not believed by the learned court because of discrepancy in their statements as to colour of the blank stamp paper. While DW 2 and DW 3 claimed that the blank stamp paper was blue, the learned court found that the stamp paper was really green. On such discrepancy as to whether the paper was blue or green the learned Trial court disbelieved the testimony of DW 2 and DW 3 who supported the case of the DW 1 in regard to obtaining of signature on blank stamp paper and two cartridge papers. Having so found that the defendant failed to prove his case, the learned Trial court held that signature on Ext. 1 being admitted the agreement for sale was proved. Having so found that the defendant failed to prove his case, the learned Trial court held that signature on Ext. 1 being admitted the agreement for sale was proved. The objection, raised by the defendant that there was no averment as to readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963, was also not accepted by the learned Trial court. 7. The first Appellate court treaded on the same line as did the learned Trial court. Relying on the judgment of the Hon’ble Supreme Court in the Case of Motilal Jain vs. Ramdasi Devi and Others reported in (2000) 6 SCC 420 the learned lower appellate court held that even if there is no specific averment as to readiness and willingness in the plaint as required under Section 16(c) of the Specific Relief Act, yet on perusal of the entire plaint if such intention can be made out the same should be considered to be substantial compliance of Section 16(c) of the Specific Relief Act, 1963. Accordingly, the appeal filed by the defendant was found to be devoid of any merit and consequently the same was dismissed. 8. I have heard Mr. Sheeladitya, learned counsel for the appellants and Mr. PS Deka as well as Mr. BK Bhagawati for the respondent. Initially a notice of motion was issued in this case pending admission of the appeal and thereupon the respondent has put up appearance through his learned counsel. As agreed to by the learned counsel for both sides, this appeal is taken up for disposal by framing substantial questions of law as follows:- i) Whether suit of the plaintiff for Specific Performance of Contract was devoid of cause of action being premature? ii) Whether the suit is liable to be dismissed for non compliance of the provision of 16(c) of the Specific Relief Act? 9. Both the learned counsel are heard on the aforesaid two substantial questions of law. 10. Substantial question of law No. (i):- Whether suit of the plaintiff for Specific Performance of Contract was devoid of case of action being premature? To decide this question it is necessary to have a look at plaint. The plaintiff pleaded in paragraph 5 of the plaint, that he approached the defendant with Rs. 10. Substantial question of law No. (i):- Whether suit of the plaintiff for Specific Performance of Contract was devoid of case of action being premature? To decide this question it is necessary to have a look at plaint. The plaintiff pleaded in paragraph 5 of the plaint, that he approached the defendant with Rs. 10,000/- which is the balance amount and requested him to accept the same and to execute sale deed in respect of Schedule B land ‘but the defendant delayed the matter with some baseless plea’. It is further pleaded in the same paragraph that a notice through advocate was issued to the defendant by registered post but the defendant was delaying the matter unnecessarily without any reasonable justification. A suit for Specific Performance of Contract can be said to have been established if plaintiff succeeds to establish some essential steps. First of all, the plaintiff is to prove that there was a valid agreement of sale entered into by the defendant in his favour containing terms of agreement. Once the first step is performed, the plaintiff is required to further show in the second step that defendant committed breach of contract by denying to execute sale deed. The breach of contract by defendant can be established if the terms of the contract are proved. Normally, agreement for sale of immovable property in India does not involve time as the essence of contract unless, however, by expressed and overt statements the parties make time as the essence. The valid agreement for sale must contain the terms and conditions in it which the plaintiff is to plead and establish and thereafter to show which of these terms is/are violated or breached by the defendant. For instance, if time is not the essence of the contract which is the normal case of agreement for sale of immovable properties in India, then defendant may not be guilty of breach of the terms of contract for delay in pertaining his part even if he fails to execute and register sale deed on being offered by the plaintiff. Sale of immovable property cannot be made at mere desire of the parties. This is regulated by rules and guidelines framed by the Government. Sale of immovable property cannot be made at mere desire of the parties. This is regulated by rules and guidelines framed by the Government. The suit land falls in Gauhati Municipal area and under such circumstances unless and until necessary no objection certificate by the Deputy Commissioner and Development Authority is obtained, there is no question of execution for registration of a sale deed. In the absence of such no objection, sale and registration is prohibited by law. The plaint is surprisingly silent in regard to disclosure of such material facts. Besides, defendant’s failure to execute and register sale deed within a given period of time may be fortuitous or caused by intervening circumstances and this is why unless and until defendant denies to execute sale deed, the question of breach may not arise. Under such facts and circumstances, it may not be possible to hold that defendant breached the terms of contract. In the plaint in hand, neither the terms of the contract nor breach of any specific term has been pleaded by the plaintiff. As stated above, plaintiff is duty bound to plead and prove not only existence of valid agreement for sale but also breach of term of such agreement by the defendant. Even if plaintiff succeeds to prove the first two steps on way to establish a case for specific performance, the plaintiff is also duty bound to plead and prove that he is ready and willing to perform his part of contract. If any of these 3 (three) steps is not established by the plaintiff, he may not be entitled to a decree of specific performance. It cannot be lost sight of that specific performance is a discretionary relief. 11. Coming to the facts of the present case even if it is assumed for the time being that the case put forward by the defendant as to obtain his signature on blank stamp paper is not established and that plaintiff has succeeded to plead and prove existence of a valid agreement for sale, yet the plaintiff has failed to plead the terms of the contract and the fact that defendant breached any of the terms. It is not the case of the plaintiff that defendant has refused to execute and register a sale deed. It is not the case of the plaintiff that defendant has refused to execute and register a sale deed. There is no averment anywhere in the plaint that the defendant has breached any of the terms of the agreement or that he did not agree to execute sale deed. Forgetting the case of the defendant for the time being and focusing on the averments made in the plaint it appears that the only allegation the plaintiff has labelled against the defendant is that the defendant had been delaying execution of the sale deed on baseless grounds. What are the baseless grounds are nowhere disclosed and in the process the court is handicapped to hold that the grounds put forward by the defendant as reason for not executing sale deed is baseless ones. The plaint miserably lacks in material facts. Resultantly, the plaintiff has failed to make out cause of action for a suit for specific performance of contract. This is because once plaintiff could not plead and prove that defendant breached any of the terms of the contract, cause of action for a suit of specific performance of contract cannot arise. None of the learned Courts below has considered this aspect of the matter. In view what have been stated above, the first substantial question of law is decided against the respondent and in favour of the appellant. 12. Substantial question of law No. (ii): Whether the suit is liable to be dismissed for non compliance of the provision of 16(c) of the Specific Relief Act? This is a suit for Specific Performance of Contract. Section 16(c) of the Specific Relief Act provides that plaintiff must plead and prove that he is ready and willing to perform his part of the contract as otherwise no decree for specific performance can be passed. In conformity with such legal requirement prescribed under the Specific Relief Act, 1963 the prescribed format for breach of agreement to purchase land has been laid down in form No. 13 under Appendix A to the Code of Civil Procedure. In conformity with such legal requirement prescribed under the Specific Relief Act, 1963 the prescribed format for breach of agreement to purchase land has been laid down in form No. 13 under Appendix A to the Code of Civil Procedure. In paragraph 2 of the standard form of plaint for such suit the prescribed recital is as follows: “...........was ready and willing, and/is still ready and willing an offer to transfer the same to the defendant.” In catena of decisions of the Hon’ble Supreme Court, the statutory requirement of such averment as to readiness and willingness has been emphasised. Paragraph 12 in the case of Man Kaur vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 can be referred to in this regard which is quoted below: “12. Section 16(c) of the Specific Relief Act, 1963 (“the Act”, for short) bars the specific performance of a contract in favour of a plaintiff “who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant”. Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16, “the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao; Pushparani S. Sundaram v. Pauline Manomani James and Manjunath Anandappa v. Tammanasa.)” The judgment of the Hon’ble Supreme Court in the case of A.K. Lakshmipathy and Others vs. Rai Saheb Pannalal H. Lahoti Charitable Trust and Others reported in (2010) 1 SCC 287 is also relevant in this regard. Paragraph 28 of the said judgment is quoted below in this context: “28. Next is the question whether the appellants were ready and willing to complete their part of the agreement. Paragraph 28 of the said judgment is quoted below in this context: “28. Next is the question whether the appellants were ready and willing to complete their part of the agreement. It is well settled that in a suit for specific performance of a contract for sale, it has to be proved that the plaintiff who is seeking for a decree for specific performance of the contract for sale must always be ready and willing to complete the terms of the agreement for sale and that he has not abandoned the contract and his intention is to keep the contract subsisting till it is executed. This readiness and willingness on the part of the appellants in the facts and circumstances of the case, in our view, cannot be found in favour of the appellants. In this case, not only the trial court as well as the High Court on concurrent findings of fact and on consideration of the evidence on record came to the conclusion that the appellants were not ready and willing to perform the terms and conditions of the agreement for sale.” In the case of Motilal Jain vs. Ramdasi Devi and Others reported in (2000) 6 SCC 420 , the Hon’ble Supreme Court has expressed that the intention of the plaintiff in regard to readiness and willingness is to be understood on perusal of the plaint in entirety. In a given case such expression may not be in the prescribed format but yet the same may exist in other form. Here in this case the aforesaid judgment does not appear to be applicable on facts. Nowhere in the present plaint, is it stated that defendant did not agree to execute the sale deed although all along the plaintiff has been ready and willing. The agreement Ext. 1 also does not reveal as to who is to take steps for obtaining no objection certificate of the concerned authorities which are preconditions for execution and registration of sale deed in regard to immovable property. Normally, it is the purchaser who is to take the steps. Plaint is silent in regard to such performance as to obtaining no objection certificate from the appropriate authorities. Normally, it is the purchaser who is to take the steps. Plaint is silent in regard to such performance as to obtaining no objection certificate from the appropriate authorities. That being the position and in the absence of necessary material facts as referred to above, it becomes difficult to presume even upon perusal of the plaint in entirety that the plaintiff has substantially complied with the requirement of Section 16(c) of the Specific Relief Act, 1963. 13. At the same time it is also to be noted that the alleged agreement for sale was said to have been executed on 13.05.1993. It is the case of the defendant that he did never execute such agreement. By examining 2 (two) witnesses as DW 2 and DW 3 the defendant brought it on record that on 13.05.1993 plaintiff obtained signature of the defendant on three papers out of which one was a stamp paper and other two sheets were cartridge papers. Such oral evidence of the defendant has been ignored by the learned courts below merely for the reason that DW 4 described the colour of the paper to be blue whereas it was really green. Such minor discrepancy or deviation cannot be fatal in a suit for specific performance of contract where the standard of proof is by preponderance of probability and not the standard of proof beyond reasonable doubt. Moreover, by proving Ext. Ka the defendant showed that it is the plaintiff who had received Rs.10,000/- from the defendant on 24.05.1993 i.e. hardly 11 days after alleged execution of Ext. 1. The plaintiff flatly denied to have issued money receipt, Ext. Ka, saying that it does not contain signature and dared to pray for referring the document to Forensic Science Laboratory for opinion. Ext. Cha is the opinion of the FSL according to which signature on Ext. Ka was that of the plaintiff. Once the denial by the plaintiff of having signed Ext. Ka failed on the face of Ext. Cha (opinion by FSL) existence of Ext. Ka itself became stumbling block to the prayer of the plaintiff for specific performance. This is because defendant flatly denied to have executed Ext. 1 agreement on 13.05.1993. If both the documents i.e. Ext. 1 and Ext. Ka failed on the face of Ext. Cha (opinion by FSL) existence of Ext. Ka itself became stumbling block to the prayer of the plaintiff for specific performance. This is because defendant flatly denied to have executed Ext. 1 agreement on 13.05.1993. If both the documents i.e. Ext. 1 and Ext. Ka are considered side by side it raises a serious question as to why did the defendant make payment of Rs.10,000/- to the plaintiff on 24.05.1993 if he was supposed to receive Rs. 10,000/- from the plaintiff being balance consideration for executing sale deed with respect to Schedule B land. All these questions coupled with failure on the part of the plaintiff to disclose material facts like performance of his part of the contract as to payment of Rs. 10,000/- and of obtaining No Objection Certificate from the concerned authorities conspicuously point out that plaintiff failed to plead and prove the requirement under Section 16(c) of the Specific Relief Act. The second substantial question of law, therefore, has to be decided against the plaintiff/respondent and it is accordingly decided. 14. Having decided both the substantial questions of law in favour of the appellant/defendant, second appeal is liable to be allowed. It is accordingly allowed. The impugned judgments passed by the learned courts below are hereby set aside and the suit of the plaintiff is dismissed. 15. No order as to costs.