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2016 DIGILAW 2585 (HP)

Chander Lekha v. Purshotam Dutt

2016-12-06

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. Since common question of law and fact arise in both these appeals, therefore, they were taken up together for consideration and are being disposed of by a common judgment. 2. Both these regular second appeals have been filed against the judgment and decree dated 01.10.2015 passed by learned Additional District Judge (I), Mandi in Civil Appeal No. 73 of 2015 and Civil Appeal No. 75 of 2015, whereby he affirmed the judgment and decree passed by learned trial Court on 16.6.2015 in Civil Suit Nos. 78 of 2008 and 79 of 2008 thereby decreed the suit of the plaintiff/respondent No.1 herein in both the appeals. 3. Briefly stated, the facts are that the plaintiff/respondent No.1 (hereinafter referred to as the ‘plaintiff’), filed a suit for specific performance of the contract with the allegation that defendant No.1/respondent No.2 herein, was owner in possession of the land comprised in Khewat No. 51 min, Khatauni No. 116, Khasra No. 3467/1, measuring 517 sq. mtrs. situated in Muhal Sundernagar/26/8, Tehsil Sundernagar, District Mandi, H.P. He entered into an agreement of sale with the plaintiff on 15.12.2007 for sale of 244 sq.mtrs. of land out of Khasra No. 3467/1 for consideration of Rs.3,00,000/- and had received Rs.50,000/- as earnest money. It was averred that subsequently respondent No.2 again demanded more money and sale consideration was raised to Rs.4,00,000/-, it was in pursuance to the agreement that sale deed was prepared on 7.1.2008 and was duly attested by the witnesses. However, before the same could be registered, respondent No.2 slipped from the office of Sub Registrar and resultantly the sale deed could not be registered. It was also averred that respondent No.2 out of evil intention thereafter executed a sale deed of entire khasra No. 3467/1 in favour of appellant and proforma respondent No.3 on 1.2.2008 out of Khasra No. 3467/1, 273/517 shares measuring 273 sq.mtrs in favour of proforma respondent No.3 (appellant in RSA No. 8 of 2016) and 2444/517 shares measuring 244 sq. mtrs in favour of appellant (proforma respondent No.3 in RSA No. 8 of 2016) for a total consideration of Rs.9,38,000/- and in this way the agreement to sell was frustrated. It was averred that the plaintiff was always ready and willing to perform his part of contract and still ready and willing and therefore, the suit be decreed. 4. mtrs in favour of appellant (proforma respondent No.3 in RSA No. 8 of 2016) for a total consideration of Rs.9,38,000/- and in this way the agreement to sell was frustrated. It was averred that the plaintiff was always ready and willing to perform his part of contract and still ready and willing and therefore, the suit be decreed. 4. The appellant filed written statement denying the allegations in the plaint and it was maintained that the appellant was bonafide purchaser for consideration of the suit land under the law. Similar contention was raised by proforma respondent No.3. 5. The learned trial Court on 14.5.2012 framed the following issues: 1. Whether the plaintiff and defendant No.1 entered into an agreement for sale of the suit land on 15.12.2007, as alleged? OPP 2. Whether the sale deed dated 7.1.2008 was executed by the defendant No.1 in favour of plaintiff regarding the suit land, as claimed? OPP 3. Whether the plaintiff is entitled to the relief of the defendant No.1 being directed to register the sale deed regarding the suit land in favour of the plaintiff, as claimed? OPP 4. Whether alternatively, the plaintiff is entitled to recovery of Rs.4,00,000/- alongwith costs and interest against defendant No.1, as claimed? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff has no cause of action and locus-standi? OPD 7. Whether the plaintiff is guilty of suppression of material fact? If so, its effect? OPD 8. Whether the defendant No.2 is a bonafide purchaser of part of the suit land? OPD2. 9. Whether the defendant No.3 is bonafide purchaser of part of the suit land? OPD3. 10. Relief. 6. After recording the evidence and evaluating the same, the learned trial Court vide its judgment and decree dated 16.6.2015 decreed both the aforesaid suits and the defendant No.1/respondent No.2 was directed to execute the sale deed in favour of respondent No.1/plaintiff, who in turn was directed to pay the balance sale consideration of Rs.3,45,000/- within a period of 30 days in each of the cases. 7. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant filed first appeal in the Court of learned District Judge, Mandi, which ultimately came to be tried by learned Additional District Judge (I), Mandi and was dismissed vide judgment and decree dated 1.10.2015. 8. 7. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant filed first appeal in the Court of learned District Judge, Mandi, which ultimately came to be tried by learned Additional District Judge (I), Mandi and was dismissed vide judgment and decree dated 1.10.2015. 8. Aggrieved by the judgment and decree passed by learned Courts below, the appellant filed the instant second appeal before this Court which was admitted on 10.8.2016 on the following substantial question of law: “Whether the appellant is a bonafide purchaser for consideration without any notice and finding to issue No.9 is totally wrong?” 9. During the course of hearing, the record revealed that though the plaintiff/respondent No.1 had pleaded that he was ready and willing to perform his part of the contract, however, the evidence in this regard appeared to be deficient and accordingly with the consent of the parties, the following additional substantial question of law was framed: “Whether the plaintiff/respondent No.1 has proved his continuous readiness and willingness to perform his part of the contact at all stages i.e. from the date of agreement till the date of hearing of the suit?” I have heard learned counsel for the parties and also gone through the records of the case carefully. 10. At the outset, it may be observed that it is more than settled that the plaintiff has to prove his continuous readiness and willingness to perform his contract at all stages i.e. from the date of the agreement till the date of the hearing of the suit. 11. In Jugraj Singh and another vs. Labh Singh and others AIR 1995 SC 945 the Hon’ble Supreme Court in para 3 held that in a suit for specific performance of the contract, the plaintiff must prove continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit. It is apt to reproduce para 3 of the judgment as under: “3. Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract.” 12. In N.P. Thirugnanam (D) by L.Rs vs. Dr. R. Jagan Mohan Rao and others AIR 1996, SC 116, the Hon’ble Supreme court in para 5 of the judgment observed that the plaintiff must from the date of the execution till date of decree prove that he is ready and has always been willing to perform his part of the contract. It is apt to reproduce para-5 of the judgment as under: “It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.” 13. Now, adverting to the pleadings with regard to the specific performance, there can be no denial that these have to be in conformity with the form as prescribed by Order 6 Rule 3 CPC in this regard i.e. as given in Clause 3 of Form 47 contained in Appendix ‘A’. 14. A careful reading of para 10 of the plaint makes it clear that the averments as contained under Clause 3 is not in stricto sensu complied with by the plaintiff. The same is evident from the averments made in para 10 of the plaint, which reads “that the plaintiff is ready and willing to perform his part of the contract and to pay remaining consideration and to borne the expenditure of execution and registration of the sale deed.” 15. The Form No. 47 of Appendix ‘A’ reads thus: “No. 47 SPECIFIC PERFORMANCE (No.1) (Title) A.B., the above-named plaintiff, states as follows:- 1. By an agreement dated the ….day of…..and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of…..rupees. 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. [As in paras 4 and 5 of Form No.1.] 6. 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. [As in paras 4 and 5 of Form No.1.] 6. The plaintiff claims that the court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.” 16. Upon a careful reading of para-10 of the plaint, I have no hesitation to hold that the plaintiff/respondent No.1 have not complied with the legal requirement which is mandatory as provided under Order 6 Rule 3 CPC of the Specific Relief Act. 17. Adverting to the oral evidence led by the plaintiff, while appearing as PW-1 the plaintiff has not even cared to make a whisper regarding his being still ready and willing to perform his part of the contract and it is really not understood as to on what basis have the learned courts below decreed the suit of the plaintiff without the mandatory requirement of law having been proved. 18. Apart from the above, is it really so simple for the plaintiff to allege that defendant No.1/respondent No.2 had fled from the spot in order to avoid performance of his part of contract? 19. Having gone through the records of the case, more particularly pleadings and oral evidence, I entertain no doubt in my mind that both the learned Courts below have failed to appreciate the real controversy in issue. The plaintiff while appearing as PW-1 has categorically admitted as against the sale consideration of Rs.4,00,000/-, he had paid only a sum of Rs.50,000/- each in both the cases. 20. There is no evidence led by the plaintiff, rather there is no whisper made by him while appearing as PW-1 that he on the date of registration of the sale deed was possessed of the balance sale consideration of Rs.3,45,000/- and Rs.3,45,000/- in each case total Rs.6,90,000/-and was ready to pay this amount to defendant No.1/respondent No.2. 20. There is no evidence led by the plaintiff, rather there is no whisper made by him while appearing as PW-1 that he on the date of registration of the sale deed was possessed of the balance sale consideration of Rs.3,45,000/- and Rs.3,45,000/- in each case total Rs.6,90,000/-and was ready to pay this amount to defendant No.1/respondent No.2. Yet, when he got drafted the sale deed, he incorporated therein a clause to the effect that he i.e. respondent No.1/plaintiff had paid the entire sale consideration to defendant No.1/respondent No.2 and he in lieu of his having received the entire sale consideration had delivered the possession to the plaintiff. Obviously in such circumstances, the defendant No.1/ respondent No.2 had no option but to flee from the office of Sub Registrar or else executed the sale deed which itself was based on the fraud committed by respondent No.1/plaintiff. 21. At this stage, it would necessary to refer to the judgments rendered by both the learned Courts below whereby they came to the conclusion that the plaintiff was ready and willing to perform his part of the contract and the relevant portion of the judgment of the learned trial Court reads thus: “24. The counsel for the defendants avers that the plea of specific performance is a discretionary relief. The counsel avers that the plea of readiness and willingness is not established by the plaintiff. The counsel further avers that without the plea of readiness and willingness as provided under Section 16 (C) of the Specific Relief Act, 1963 no relief of specific performance can be granted in favour of the plaintiff. This plea set up by the counsel for the defendant is without merits. In para No.10 of the plaint, the plaintiff has clearly stated that he is ready and willing to perform his part of the contract. Further, the readiness and willingness is more than established when the plaintiff executed the sale deed with defendant No.1, which is Ext.PW-1/B. The agreement to sell Ext.PW-1/A provided for sale consideration of Rs.3,00,000/-, whereas the plaintiff agreed to purchase the suit land for a consideration of Rs.4,00,000/- as per Ext. PW- 1/B. Thus, the readiness and willingness of the plaintiff cannot be doubted in the present case. PW- 1/B. Thus, the readiness and willingness of the plaintiff cannot be doubted in the present case. Rather, the plaintiff is more than willing to purchase the suit land as he agreed to higher price as compared to agreement to sell, which is evident from the sale deed Ext.PW-1/B.” Whereas, the relevant portion of the judgment of the learned first Appellate Court reads thus: “18…….The plaintiff has stated that he is ready to perform his part of contract and he is ready to pay the amount of Rs.3,50,000/- to the defendant No.1. The sale deed Ext.PW-1/B also shows that the land was sold for Rs.4,00,000/-. There are signature of Shashi Kumar on sale deed Ext.PW-1/B and agreement Ext.PW-1/A. This Ext.PW-1/A shows that amount of Rs.50,000/- was paid to the defendant No.1 by plaintiff as PW-1 has stated that he has paid Rs.5,000/- (Five Thousand) on 1st day of the sale deed. He has also admitted that remaining amount of Rs.3,50,000/- was to be paid to defendant No.1. The plaintiff is ready to pay the remaining amount to the defendant No.1. The plaintiff is ready to perform his part of the contract and defendant No.1 has not come in the witness box to rebut the evidence of the plaintiff. The plaintiff, therefore, has proved this fact that the defendant had executed the agreement to sell Ext.PW-1/A and sale deed Ext.PW-1/B in favour of the plaintiff. Though in Ext.PW-1/B it has been mentioned that whole amount has been received by the defendant No.1, but it is sincere admission of the plaintiff while coming in witness box and he is ready to pay remaining amount to the defendant No.1. Plaintiff is therefore entitled to the relief of Specific Performance of Contract and Ld. Lower Court has rightly held him entitled for this decree. The Ld. Lower Court has therefore rightly decreed the suit of the plaintiff. Therefore, I do not find any reason to interfere with the judgment passed by the Ld. Lower Court. Hence, this point is decided in affirmative.” 22. I am really surprised how the learned Courts below extended time for the payment towards the balance sale consideration when it was not even proved on record that he had been ready and willing and was still ready and willing to perform his part of the contract. Lower Court. Hence, this point is decided in affirmative.” 22. I am really surprised how the learned Courts below extended time for the payment towards the balance sale consideration when it was not even proved on record that he had been ready and willing and was still ready and willing to perform his part of the contract. The learned Courts below appear to have been unnecessarily influenced and prejudiced because the defendant No.1/respondent No.2 had fled away from the office of the Sub Registrar, little realizing his compulsion and complications that would arisen in case he would have executed the sale deed without receiving the balance sale consideration. 23. Conversely, it was incumbent upon the plaintiff to have led sufficient evidence to indicate that on the day when the sale deed was to be registered and the defendant No.1/respondent No.2 had fled from the office of Sub Registrar, he was possessed of the balance sale consideration or that he had actually handed over the balance sale consideration and it was after receipt thereof that defendant No.1/ respondent No.2 had fled from the office of the Sub Registrar. Rather, it is admitted by the plaintiff that he had not paid the balance sale consideration of Rs.3,45,000/- in each of the cases i.e. total Rs.6,90,000/- to the defendant No.1/respondent No.2. 24. On the basis of the aforesaid discussion, it can conveniently be held that there was no subsisting contract between the plaintiff and defendant No.1/respondent No.2 which could be enforced in a court of law and obviously therefore, the appellants in both the cases are purchasers for valid consideration and question of their being bonafide in fact does not arise as there is neither any subsisting agreement or contract between the plaintiff and defendant No.1/respondent No.2, rather, it was the plaintiff/respondent No.1, who by dubious means wanted to get the sale deed executed, that too, without paying a single paisa of balance sale consideration of Rs.3,45,000/- in each case i.e. total Rs.6,90,000/-. 25. As a sequel to my aforesaid discussion, I have no hesitation to hold that the suits filed by the plaintiff were nothing but an abuse of the process of law and unfortunately both the learned Courts below did not apply their judicial mind to the real issue in controversy and decreed the suit and even the appeal filed against the same was ordered to be decreed. Even the bare provisions of the Specific Relief Act and the essential pre-requisites as are required to be proved in a case of specific performance of contract, were conveniently ignored. Even otherwise, the plaintiff has not approached the Court with clean hands which is prerequisite for maintaining a suit for specific relief of agreement to sell. 26. Having said so, I find merit in both the appeals and the same are allowed with special costs quantified at Rs.20,000/- each in each case to be paid by the plaintiff/respondent No.1 to the appellants.