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2015 DIGILAW 363 (ORI)

Chandrakanti Dash v. Rajendramani Devi

2015-06-18

B.K.NAYAK

body2015
JUDGMENT : B.K. Nayak, J. This first appeal has been filed by the plaintiff challenging the judgment and decree respectively dated 31.10.2006 and 09.11.2006 passed by the learned Additional Civil Judge (Senior Division), Puri in Title Suit No.80/31 of 2005/1999. 2. The plaintiff-appellant filed the aforesaid suit for specific performance of contract for sale with the following averments: The suit property appertaining to plot no.980, Ac.0.050 under Khata no.594 in mouza-Manikarnika of Puri Town with a house thereover belonged to late P.Laxmi Nrusingha Sanyasi Raju, the king of Salur, who in order to create a trust in his name in the temple of Lord Jagannath, Puri, proposed to sell the suit property and the plaintiff agreed to purchase the same and agreement (Ext.12) was accordingly executed by the vendor on 03.02.1996 and the consideration for the property was fixed at Rs.1,10,000/-. A sum of Rs.10,000/- was paid by the plaintiff as earnest money, receipt whereof has been acknowledged in the agreement. It was stipulated that the balance amount will be paid by the plaintiff by the end of December, whereupon the sale deed will be registered in her favour. On the date of agreement the delivery of possession of the suit property was given to the plaintiff. It is further asserted that the plaintiff on several occasions paid some amounts towards part consideration as per request of the vendor. It is stated that as per the understanding between the parties the plaintiff spent Rs.2,575/- for repair of the house standing over the suit land and that he paid Rs.5,000/- to one Sashi Sekhar Rath on the instruction of the vendor. Between 25.01.1996 and 13.02.1996 the vendor had taken a total sum of Rs.46,665/- on different dates. On 17.07.1996, 12.09.1996 and 03.11.1996 part consideration amount totalling Rs.16,000/- was paid by the plaintiff's husband to the vendor at the vendor's residence. Between 28.01.1997 and 29.07.1997 on four occasions, the plaintiff's husband paid to the vendor a sum of Rs.20,000/- towards part consideration at the vendor's residence. The plaintiff in good faith continued to pay part consideration amounts at regular intervals and by the date 29.07.1997, the plaintiff had already paid to the vendor Rs.1,02,240/-. The vendor fell ill for which the sale deed could not be executed and registered by the time stipulated in the agreement. The plaintiff in good faith continued to pay part consideration amounts at regular intervals and by the date 29.07.1997, the plaintiff had already paid to the vendor Rs.1,02,240/-. The vendor fell ill for which the sale deed could not be executed and registered by the time stipulated in the agreement. As per the desire of the vendor, the balance amount of Rs.7,760/- was to be deposited in the temple of Lord Jagannath, for the purpose of offering Bhoga. The vendor, the Raja of Salur, however, breathed his last without registering the sale deed in favour of the plaintiff. Thereafter, the plaintiff called upon defendant nos.2 to 4, the legal heirs of the vendor to execute and register the sale deed on receiving the balance consideration amount, but to no avail. 3. Defendant no.1 is the wife and defendant nos.2 to 4 are the sons of the vendor. One L. Indira Devi, who claims to be the second wife of the king (vendor) and her children were impleaded as defendant nos.5 to 7. 4. Only defendant no.2, the elder son of the vendor, filed a written statement and contested the suit whereas the other defendants remained ex-parte. In his written statement, defendant no.2 admitted the execution of the agreement by his late father in favour of the plaintiff for sale of the suit property for a consideration of Rs.1,10,000/- and about receipt of Rs.10,000/- by the vendor towards earnest money. However, defendant no.2 denied that his father received any further sum subsequently on different occasions towards part payment of consideration money and that he intended that the balance amount of Rs.7,760/- should be deposited by the plaintiff in the Jagannath Temple Office for religious purpose. It was however admitted that subsequent to the execution of the agreement the plaintiff paid a sum of Rs.4,000/- only on 12.02.1996 to the vendor and no other amount. It was specifically pleaded in the written statement that for the first time during the obsequies of late King, the plaintiff expressed her unwillingness to purchase the suit property for want of adequate funds and assured to give back possession of the suit house to the defendants. Therefore on 10.09.1998, defendant nos. 1 to 4 entered into an agreement with one Basudev Kar of Puri Town for sale of the suit property in his favour and accordingly delivered possession of the suit property to him. Therefore on 10.09.1998, defendant nos. 1 to 4 entered into an agreement with one Basudev Kar of Puri Town for sale of the suit property in his favour and accordingly delivered possession of the suit property to him. This agreement by the defendant nos. 1 to 4 was within the knowledge of the plaintiff and her husband. 5. On the basis of the pleadings of the parties, the trial court framed six issues and on consideration of the evidence came to hold that there was no proof of payment of part consideration on different occasions except the amount of Rs.10,000/- paid as earnest money at the time of execution of the agreement and a further sum of Rs.4,000/- later. It also held that the plaintiff was not ready and willing to perform her part of the contract and accordingly the suit was dismissed. 6. It is submitted by the learned counsel for the appellant that the Trial Court has not considered the evidence on record in its proper perspective and erroneously recorded finding that the plaintiff was not ready and willing to perform her part of the contract. In particular, it is submitted that there was no reason to disbelieve the evidence with regard to part payment of consideration money by the plaintiff on different dates totally amounting to Rs.1,02,240/-. Learned counsel for the contesting respondent No.2 on the other hand submits that the Trial Court has properly assessed the evidence on record and has come to the right conclusion, and therefore its judgment warrants no interference. 7. The plaintiff has stated that she was ready and willing to perform her part of contract with the averment that including the earnest money of Rs.10,000/- paid on the date of execution of the agreement on 03.02.1996, she has paid different amounts on different dates towards part consideration totally amounting to Rs.1,02,240/- and that only a balance consideration of Rs.7,760/- was required to be paid by her which was intended by late Raja ( vendor ) to be deposited in the Jagannath Temple for the purpose of offering bhog, which the plaintiff is ready and willing to pay to the defendants for execution and registration of the sale deed after the demise of the vendor. While defendant No.2 admits the execution of the agreement for sale by his late father and receipt of earnest money of Rs.10,000/- on the date of the agreement and a further sum of Rs.4000/- on 12.02.1996 by his father, he has denied plaintiff's averments with regard to payment of part considerations on different dates. The plaintiff pleads her readiness and willingness to pay the balance consideration of only Rs.7,760/- and not Rs.96,000/-, which according to the defendant would be the balance consideration money to be paid by the plaintiff. In case plaintiff's evidence falls short of proving payments of total part consideration of Rs.1,02,240/-, her readiness and willingness to pay the balance consideration of Rs.7,760/- cannot be accepted as sufficient in proof of her readiness and willingness to pay the balance consideration money of Rs.96,000/-. 8. It is held by the Hon'ble Apex Court in the decision reported in (2005) 7 SCC 534 ; Aniglase Yohannan v. Ramlatha and others that where the plaintiffs conduct had been blemishless throughout and the facts contained in the plaint led to an inference of plaintiff's readiness and willingness, the requirements of Section 16(c) of the Specific Relief Act stood complied with. It has been held by a division Bench of this Court in the decision reported in 50 (1980) CLT 77: Srihari Sahu alias Hari Charan Shaw v. Smt. Haripriya Ojha that the plaintiff in a suit for specific performance has to allege and if the fact was traversed, must prove his continuous readiness and willingness, from date of the contract to the time of the hearing, to perform his part of the contract. Failure to make good such averment bring with it the inevitable dismissal of the suit. In so holding, the division Bench relied upon the Privy Council decision reported in AIR 1928 P.C.208 : Ardeshir H. Mama v. Flora Sassoon and the decision of the Hon'ble Supreme Court reported in AIR 1967 SC 868 : Gomathinayagam Pillai and others v. Palaniswami Nadar and quoted proficiently therefrom in paragraph-6 of their judgment to the following effect: "6. It was held by the Judicial Committee of the Privy Council in the case of Ardesir H.Hama v. Flora Sassoon :- " In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. It was held by the Judicial Committee of the Privy Council in the case of Ardesir H.Hama v. Flora Sassoon :- " In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readings and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Although so far as the Act (Specific Relief Act) is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (section 24 (b) is the nearest), it seems invariably to have been recognized, and, on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same. See e.g, Karsandas v. Chhotalal, A.I.R. 1924 Bom. 199. And, with this fact in view, section 19 of the Act becomes in the present investigation all important. " The aforesaid dicta of the Judicial Committee were in clear terms approved by the Supreme Court in the case of Gomathinayagam pillai and others v. Palaniswami Nadar, Justice Shah, as the learned Judge then was, after quoting the observations of the Judicial Committee stated :- " The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. On this part of the case the Trial Court record a clear finding against the respondent that he was at no time ready and willing to perform his part of the contract. The High Court did not consider the effect of this finding upon the claim of the respondent and without expressing dissent with that finding granted a decree for specific performance to the respondent." 9. With regard to part payment of some amount towards consideration on different dates, plaintiff has in her pleadings not given clear details. The High Court did not consider the effect of this finding upon the claim of the respondent and without expressing dissent with that finding granted a decree for specific performance to the respondent." 9. With regard to part payment of some amount towards consideration on different dates, plaintiff has in her pleadings not given clear details. It is stated that Rs.2575/- was spent by the plaintiff towards repair of the house standing on the suit land, which was agreed to be adjusted towards consideration for the suit property but when and how this was agreed has not been specified. Without giving details of the amounts paid on each date, averment has been made stating that Rs.16,000/- was paid to the vendor on 17.07.1996, 12.09.1996 and 03.11.1996, without specifying what amount was paid on which of those dates. Similarly it is also averred that on 28.01.1997, 10.03.1997, 25.06.1997 and 29.07.1997 Rs.20,000/- was paid to the vendor at his residence without specifying what amount was paid on which of those dates. Both the plaintiff and her husband being examined as P.Ws.1 and 7 have admitted that there is no receipt with regard to payments made on different dates to the vendor towards part of consideration. It is explained by them that they had full trust on the vendor and therefore they did not insist for getting any receipt with regard to the payments. While payment of earnest money of Rs.10,000/- has been acknowledged in the agreement for sale ( Ext.12 ), it does not stand to reason that the plaintiff through her husband paid different sums on different dates to the vendor without insisting upon any receipt for such payments. The plaintiff also relies upon Ext.11, which is said to be a statement of accounts with regard to the payments made to the vendor and expenses incurred for him and his family at Puri and such payments as per the understanding between the parties, were to be adjusted towards consideration for the sale. Ext.11 goes to show that the plaintiff and her husband incurred expenditure of Rs.280/- on 25.01.1996 in order to go to Salur. It also reveals that on 26.01.1996 the plaintiff had talk with the vendor at Salur and paid him Rs.5000/- towards the vendor's journey expenses for coming to Puri. Ext.11 goes to show that the plaintiff and her husband incurred expenditure of Rs.280/- on 25.01.1996 in order to go to Salur. It also reveals that on 26.01.1996 the plaintiff had talk with the vendor at Salur and paid him Rs.5000/- towards the vendor's journey expenses for coming to Puri. It also reveals that expenses of the vendor and his family members including rickshaw fares, boarding and lodging charges for staying in a lodge at Puri from 01.02.1996 till 13.02.1996 has been maintained by way of account and lastly it is stated that the total expenditure on account of the vendor's stay at Puri from 25.01.1996 to 13.02.1996 is Rs.44,665/-. Thereafter, date-wise certain amounts are entered in that account statement which were said to have been paid to the vendor, making the total at Rs.1,02,240/- Ext.11 appears to be a self serving document in the form of a statement of account prepared subsequently and it does not bear the signature of any person, far less that of the vendor. In their evidence the plaintiff and her husband admitted that they cannot say what amount they paid to the vendor on what date. Therefore, the mere oral evidence of the plaintiff and the witnesses with regard to payment of different sums on different dates towards part consideration is not believable. On the contrary Ext. 'C' and 'D', the two letters dated 07.04.1996 and 23.10.1996 sent by the plaintiff's husband to the vendor reveals that even by October,1996 the plaintiff had not arranged money to pay the balance consideration since her husband was negotiating with a Calcutta party to sell some of his lands for raising funds to meet the requirement of balance consideration for the suit property. In the aforesaid circumstances this Court finds no infirmity in the finding of the trial court that the plaintiff failed to prove payment of balance consideration money of more than Rs.14,000/-. The plaintiff having not admitted the balance consideration to be Rs.96,000/- and having never shown her continuous readiness and willingness to pay the said amount, the trial court has rightly come to the conclusion that the plaintiff failed to prove her continuous readiness and willingness to perform her part of the contract. Therefore, this court finds no merit in the first appeal and accordingly the same is dismissed. Appeal dismissed.