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2015 DIGILAW 2795 (ALL)

Fariduddin v. Moinuddin Alias Babu (Chakkiwala)

2015-09-07

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. The present appeal arises out of the judgment and decree of the lower appellate court, whereby the plaintiff's suit for specific performance of contract has been rejected. 2. Facts in brief giving rise to filing of the appeal are that an agreement to sell was executed by the defendant in favour of the plaintiff on 5.1.1987 for sale of the house property in question for a consideration of Rs. 65,000/- and a sum of Rs. 5,000/- was paid as earnest money. On 12th January, 1988, this agreement to sell was also got registered. As per terms of the agreement, the defendant was required to obtain permission for sale of the property from the Ceiling Department and also from the Income Tax Department and within a period of 60 days the sale deed was to be executed. As per the plaintiff's case, the permission was not taken and intimated to the plaintiff by the defendant and in March, 1988 a further sum of Rs. 10,000/- was claimed as advance against the transaction, which was also paid. Plaintiff alleges that subsequently notices were issued on different dates for specific performance of the contract and as the defendant failed to execute the sale deed, as such Original Suit No. 377 of 1989 was filed on 3rd of April, 1989. Suit was contested by the defendant alleging that it was the plaintiff, who was not getting the sale deed executed, inasmuch as the permission was applied by the defendant in the name of the plaintiff's wife with the concerned authorities, which was granted in April, 1988 and despite intimation of it to the plaintiff, the sale deed was not got executed. The defendant further denied the factum of receipt of Rs. 10,000/- in April, 1988. Parties also led their oral and documentary evidence. Trial court for the purposes of adjudication of the suit proceeded to frame four issues. Issue No. 1 was as to whether the plaintiff was ready and willing to fulfill his part of the contract as stated in the plaint. Issue No. 2 was framed as to whether a sum of Rs. 10,000/- was advanced against the contract to the defendant. Further issues were framed as to whether the plaintiff has violated the terms and conditions of the sale agreement and to what relief is he entitled. Issue No. 2 was framed as to whether a sum of Rs. 10,000/- was advanced against the contract to the defendant. Further issues were framed as to whether the plaintiff has violated the terms and conditions of the sale agreement and to what relief is he entitled. Trial court on issue No. 1, returned a finding that the defendant had failed to comply with the conditions of the contract and issue No. 1 was answered in favour of the plaintiff. On issue No. 2, the trial court disbelieved the case of the plaintiff of having paid a sum of Rs. 10,000/-. Issue No. 3 and 4 were also decided in favour of the plaintiff and the suit for specific performance was decreed. Defendant being aggrieved filed an appeal, which has been allowed by the lower appellate court and the judgment and decree of the trial court has been set aside. Lower appellate court has essentially taken into consideration two aspects to reject the plaintiff's case. Firstly, the plaintiff has been non-suited on the ground that his claim for performance of contract upon payment of sum of Rs. 50,000/- could not be sustained as the plaintiff had failed to establish payment of Rs. 10,000/- and the balance consideration as per agreement was Rs. 60,000/-. Secondly, it has been observed that permission from the Competent Authority for execution of sale deed had been obtained by the defendant in favour of the plaintiff's wife, but the plaintiff subsequently took up a stand that the permission for execution of sale deed be obtained in the name of the wife of plaintiff's brother. On the strength of these two findings, the lower appellate court has come to a conclusion that the plaintiff was not ready and willing to have the sale deed executed, and consequently, the suit has been dismissed after setting aside the judgment and decree of the trial court. 3. Learned counsel for the appellant submits that the findings returned by the trial court on the issues framed were not specifically reversed, and therefore, the judgment and decree of the lower appellate court is in teeth of the provisions of the Order 41, Rule 31 CPC. It is also stated that points for adjudication were not formulated in appeal, and therefore, the judgment of the lower appellate court cannot be sustained. 4. It is also stated that points for adjudication were not formulated in appeal, and therefore, the judgment of the lower appellate court cannot be sustained. 4. Submission aforesaid is disputed by the learned counsel appearing for the respondent, who submits that in the facts and circumstances of the present case, the finding returned by the lower appellate court on the relevant aspects is based upon consideration of materials available on record, which requires no interference. 5. Having considered the submissions aforesaid, this Court finds that the plaintiff had clearly admitted that the contract for sale had been entered into between the parties for consideration of Rs. 65,000/- and a sum of Rs. 5,000/- had been paid as advance. The plaintiff insisted that he had subsequently paid a sum of Rs. 10,000/- in April, 1988, although, this payment of Rs. 10, 000/- was not a part of the sale agreement and the trial court has returned a finding that the plaintiff has failed to prove the payment of this ten thousand rupees. Lower appellate court, therefore, has come to a conclusion that the plaintiff was not ready and willing to have the sale deed executed in terms of the agreement. This Court finds that in the plaint as well as in the notice, which had been issued by the plaintiff for execution of sale deed, specific reference had been made to the payment of Rs. 10,000/- and its adjustment was insisted upon for getting the sale deed executed. Both the courts below have as a matter of fact found that Rs. 10,000/- had not been paid. Once that be so the readiness and willingness on the part of the plaintiff to have the sale deed executed cannot be said to exist. The findings returned by the lower appellate court on the issue of readiness and willingness on the part of the plaintiff to have the contract performed is based upon consideration of relevant materials available on record. Other aspect, which is relevant in the facts of the present case is with regard to obtaining of permission from the concerned authorities for executing the sale deed. The defendant has brought on record document No. 59-C, which is the permission obtained for execution of sale deed in favour of plaintiff's wife. Other aspect, which is relevant in the facts of the present case is with regard to obtaining of permission from the concerned authorities for executing the sale deed. The defendant has brought on record document No. 59-C, which is the permission obtained for execution of sale deed in favour of plaintiff's wife. The Plaintiff submits that he had not consented to obtaining of permission for executing the sale deed in the name of his wife. 6. Trial court has taken note of the fact that the plaintiff has not admitted to obtaining of permission in the name of the plaintiff's wife. On this count, the lower appellate court has not agreed with the trial court, inasmuch as the lower appellate court was of the opinion that in case the defendant was not willing to have the sale deed executed, he would not have obtained the permission in the name of plaintiff's wife. The reasoning assigned by the lower appellate court for coming to a conclusion that the plaintiff was not ready and willing to have the sale deed executed cannot be said to be perverse or erroneous. The circumstances, which have been taken note of to return the finding by the lower appellate court that the plaintiff himself was not ready and willing to have the sale deed executed are born-out from the record. The findings recorded by the trial court have been specifically dealt with and cogent reasons have been assigned to take a contrary view. Although, specific point for determination had not been framed in the appeal, but in the facts and circumstances of the present case, I am of the opinion that the same would not be fatal, inasmuch as the relevant considerations, which were required to have been examined had been dealt with and the finding returned by the lower appellate court is based upon a correct appreciation, which cannot be said to be without any evidence or erroneous. 7. Even otherwise section 20 of the Specific Relief Act confers discretion on the Court to grant appropriate relief and once the lower appellate court has exercised its discretion for directing refund of the earnest money, this Court in exercise of its jurisdiction under section 100 CPC would not be justified in interfering with it, when such discretion is based upon relevant consideration available on record. 8. 8. For the reasons stated above, this Court finds that no substantial question arises for consideration in the present appeal, which consequently fails and is dismissed. 9. Lower court record shall be returned.