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2017 DIGILAW 1145 (GAU)

Prabin Bora v. Sridev Sharma

2017-08-22

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. Dilip Kumar Chomal, the learned counsel for the appellants and Mr. Rupen Sharma, the learned counsel for the respondent. 2. By filing this appeal, the appellant has challenged the judgment and decree dated 30.05.2011 passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati, in T.S. No. 200/2006, thereby allowing the suit filed by the respondent- plaintiff for specific performance of contract. 3. The respondent is the plaintiff in the suit. By entering into an agreement for sale dated 21.07.2005, the respondent agreed to purchase a plot of land from the appellant at the agreed sale consideration of Rs.6,00,000/- (Rupees Six lakh only) per bigha. The agreement was in respect of a plot of land measuring about 20 Bighas 1 katha 8.5 lessas, out of which 13B-4K-11L land is covered by Dag No. 618, K.P. Patta No. 30, 10B-0K-12L is covered by Dag No. 600, K.P. Patta No. 29, 3B-0K-10L is covered by Dag No. 596, K.P. Patta No. 67, 0B-3K-07L is covered by Dag No. 549, K.P. Patta No. 29 and 1B-2K-05L is covered by Dag No. 606, K.P. Patta No. 2 of Village-Pamohi, Mouza-Ramcharani, Palasbari Circle, Dist. Kamrup, Assam. 4. Upon signing the agreement, the respondent paid a sum of Rs.5,00,000/- (Rupees Five lakh only) as advance consideration on 21.07.2005 and the balance sale consideration was to be paid within a period of 18 months from the date of execution of the agreements and/or from the date of receipt of permission from the competent authority. The appellants were to measure and demarcate the land and if there was any reduction of area then the sale consideration was to be reduced. The respondent paid a further sum of Rs.2,00,000/- on 22.08.2004, Rs.78,000/- on 21.03.2006 by cheque No. 708775 dated 21.03.2006, Rs.50,000/- by draft dated 132329 dated 21.03.2006, Rs.1,00,000/- vide draft No. 06889 dated 10.04.2006. As such, a total sum of Rs.9,28,000/- (Rupees Nine lakh twenty eight thousand only was paid as on 10.04.2006. 5. As per the plaint, the appellants did not demarcate the land. The respondent came to know on 25.09.2006 that the appellants had applied for sale permission in favour of another party, which was being processed. Hence, by stating that the respondent was ready and willing to perform his part of the contract, instituted the suit. 6. 5. As per the plaint, the appellants did not demarcate the land. The respondent came to know on 25.09.2006 that the appellants had applied for sale permission in favour of another party, which was being processed. Hence, by stating that the respondent was ready and willing to perform his part of the contract, instituted the suit. 6. In their written statement, the appellants had stated that the respondent was to pay at least 50% of the sale consideration within 6 months from the date of the agreement and only then the appellants were to apply for sale permission, but not even 10% of the sale consideration was paid, but when only 4 (four) months remained to clear the balance sale consideration, the suit was filed. It was stated that a contiguous plot of land was sold to by the appellants to the respondent prior to this transaction and at that time, the land as duly demarcated jointly before the said sale. It was doubted that when in 14 months the respondent could not clear even 10% of agreed sale consideration, there was no way that the respondent could clear about Rs.1.10 Crore in balance 4 months and, as such, it was stated that the respondent did not have money to pay to the appellants. In paragraph 19, it has been specifically pleaded that if the respondent was willing to pay the balance amount within three months, then the defendants are agreeable to obtain sale permission and execute the sale deed and once again demarcate the suit land. 7. In course of trial, the following issues were framed – 1. Whether the suit is maintainable in the present form? 2. Whether there is any cause of action for the suit? 3. Whether the plaintiff entered into agreement for sale with the defendant s on 21.07.2005? 4. Whether the plaintiff paid a sum of Rs.5,00,000/- only to the defendants as advance on 21.07.2005? 5. Whether the plaintiff is in possession of the land described in Schedule below? 6. Whether the defendants have applied for sale permission in the name of other persons other than the plaintiff? 7. Whether the plaintiff is entitled to the reliefs as prayed for? 8. To what other relief/reliefs the parties are entitled? 8. In course of trial, the respondent- plaintiff has examined two witness and the appellants-defendants had examined 1 witness. 6. Whether the defendants have applied for sale permission in the name of other persons other than the plaintiff? 7. Whether the plaintiff is entitled to the reliefs as prayed for? 8. To what other relief/reliefs the parties are entitled? 8. In course of trial, the respondent- plaintiff has examined two witness and the appellants-defendants had examined 1 witness. The learned trial court, on evaluating the pleadings and evidence on record, was pleased to decree the suit in favour of the respondent- plaintiff with cost. The appellants were directed to execute the sale deed in favour of the plaintiff within the next three months. The appellants were directed to obtain sale permission within the stipulated time, failing which the respondent- plaintiff shall move the authorities to procure the sale permission. It was further ordered that if the appellants failed to register the sale deed in favour of the plaintiff within the stipulated time, the court shall execute the sale deed in favour of the respondent and for that matter, the respondent shall have to deposit the balance sale amount as agreed upon on 21.07.2005 in the court. The plaintiff was to bear the cost of stamp papers and registration. 9. In this appeal, the learned counsel for the appellant has submitted that in the background of the fact that as per the agreed terms and conditions, the respondent was to make payment of the entire sale consideration within a period of 18 months from 21.07.2005, but even going by the admitted position in the plaint, the respondent had paid only a sum of Rs.9,28,000/- as on 10.04.2006. It is submitted that despite statement in the written statement that if the respondent makes the payment of the balance sale consideration, still the appellants were ready to execute the sale deed, but the respondent did not come forward to make payment of the balance sale consideration. Hence, the element of readiness and willingness was not present in the present case and, as such, the relief of specific relief, being discretionary, this was a fit case for allowing the appeal. In the alternative, it is submitted that as the case was for specific performance of contract, as no issue was framed on whether the respondent- plaintiff was ready and willing to perform his part of the contract was not framed, which calls for remand for fresh decision by considering the said issue. 10. In the alternative, it is submitted that as the case was for specific performance of contract, as no issue was framed on whether the respondent- plaintiff was ready and willing to perform his part of the contract was not framed, which calls for remand for fresh decision by considering the said issue. 10. Per contra, the learned counsel for the respondent has submitted that on or about the time when the appellants had accepted the last payment of Rs.1,00,000/- by draft, they had already applied for sale permission in favour of others and, as such, the plea that the appellants were ready and willing to sell the land and execute the sale deed was a false plea to frustrate the suit. It is submitted that in the cross examination of the DW-1, he had specifically denied the suggestion that he was ready or willing to sell the land and, as such, it is submitted that the defence has no standing. 11. It is also submitted that the condition that the respondent would have to pay 50% of the sale consideration before sale permission was not there in the contract and, as such, the said plea being contrary to the written contract is required to be excluded under the provisions of Section 92 of the Evidence Act, 1872. In this regard, the learned counsel for the respondent has relied on the case of Bai Hira Devi & Ors. Vs. The Official Assignee of Bombay, AIR 1958 SC 448 (FB). It is submitted that the respondent had made the necessary pleadings regarding his readiness and willingness to perform his part of the contract in the plaint and moreover, as parties had lead evidence knowing the nature of the case, the non- framing of issue on readiness and willingness of the respondent to perform his part of the contract was not fatal. In this regard, the learned counsel for the respondent has relied on the case of (i) Nedunuri Kameswaramma Vs. Sampati Subba Rao., AIR 1963 SC 884 (FB), (ii) Md. Mohar Ali Vs. Md. Mamud Ali & Ors., AIR 1998 Gau 92 , (iii) Monoranjan Paul & Ors. Vs. Narendra Kumar Paul & Ors., AIR 1994 Gau 64 , and (iv) Durg Singh Vs. Mahesh Singh & Ors., AIR 2004 MP 146 . Sampati Subba Rao., AIR 1963 SC 884 (FB), (ii) Md. Mohar Ali Vs. Md. Mamud Ali & Ors., AIR 1998 Gau 92 , (iii) Monoranjan Paul & Ors. Vs. Narendra Kumar Paul & Ors., AIR 1994 Gau 64 , and (iv) Durg Singh Vs. Mahesh Singh & Ors., AIR 2004 MP 146 . It is further stated that the plaint is in accordance with the prescribed form No. 47 and 48 of appendix-A of the CPC. 12. On the issue of Section 20 of the Specific Relief Act, 1872, that the increase in the price of the land, if so, in the interregnum ought not to be considered as a ground for refusing specific performance in this case because the respondent has shown his readiness and willingness to perform his part of the contract and therefore, as the defaulting party was the appellants, the respondent should not be made to suffer for default of the appellants. In support of this argument, the learned counsel for the respondent has relied on the case of Laxman Tatyaba Kankate Vs. Smt. Taramati Harischandra Dhatrak, 2010 AIR SCW 4570: (2013) 8 SCC 147 , and (ii) S.V.R. Mudaliar (Dead) by LRs & Ors. Vs. Mrs. Rajabu F. Buhari (Dead) by LRs. & Ors., AIR 1995 SC 1607 . 13. Considered the arguments made by the learned counsels for both sides and considered the pleadings and evidence on record. On the basis of the arguments advanced by the learned counsels for both sides, this court deems fit to formulate the following points of determination. (a) Whether the respondent was ready and willing to perform his part of the contract? (b) Whether the judgment and decree passed by the learned trial court is sustainable on facts and in law? 14. Discussion on the point of determination No.(a): (a) In this regard, the learned trial court did not frame any specific issue on the readiness and willingness of the respondent-plaintiff to perform his part of the contract. However, it appears that the learned Trial court did frame Issue No.7 to the effect that "Whether the plaintiff is entitled to the reliefs as prayed for?" (b) In the case of Durg Singh (supra), the Hon'ble Madhya Pradesh High Court has held as follows:- “14. However, it appears that the learned Trial court did frame Issue No.7 to the effect that "Whether the plaintiff is entitled to the reliefs as prayed for?" (b) In the case of Durg Singh (supra), the Hon'ble Madhya Pradesh High Court has held as follows:- “14. It has been contended by Shri K.N. Agrawal, learned senior counsel that on the question of readiness and willingness, no specific issue has been framed. The argument though appears to be attractive but on deeper scrutiny found to be devoid of any substance. True, no specific issue in that regard has been framed by the Trial Court but issue No.4 has been framed that whether plaintiff is entitled for decree of specific performance which would also include the readiness and willingness. Even otherwise, if the parties are aware that what they have to face in the trial and they led their evidence accordingly, merely non-framing of a particular issue would not be fatal.” (c) It is seen that in the present case in hand, the respondent had indeed pleaded about his readiness and willingness to perform his part of the contract. Therefore, although no specific issue on readiness and willingness has been framed by the learned trial court, the same is not found to have prejudiced the parties as the parties lead evidence with full knowledge about the plea of 'readiness and willingness' and the witnesses i.e. PW-1 and DW-1 were also cross examined on the point. The ratio on plea of readiness and willingness in the other cases cited by the learned counsel for the respondent appears to be a well settled law on the point. Hence, accepting the ratio of the case of Durg Singh (supra), the Issue No.7 as framed by the learned Trial Court is held to cover in it the point whether the respondent- plaintiff was ready and willing to perform his part of the contract. (d) While deciding Issue No.7, the learned Trial Court in paragraph 17 of its judgment has dealt with the question as to whether the respondent-plaintiff has proved his readiness and willingness to perform the essential terms of the contract and held that the same to be in favour of the respondent. (e) In order to appreciate the decision on the issue, the pleadings and evidence of the witnesses has been revisited. (e) In order to appreciate the decision on the issue, the pleadings and evidence of the witnesses has been revisited. Clause-3, 5, 6, and 7 of the Agreement for Sale dated 21.07.2005 are quoted below:- "3. That the purchaser on this day paid to the Vendors an advance amount of Rs.5,00,000/- (Rupees Five Lakhs). The balance amount of total sale price shall be paid in such installments as may be agreed upon between the parties but in any case the balance amount will be cleared within a period of 18 months from the date of execution of this agreement and/or from the date of Permission of Sale is granted by the competent authority to the Vendors in favour of the Purchaser. 5. That in the event of the actual area of the land on the ground being less than what has been mentioned in the Schedule, the total sale price thereof will accordingly decrease calculated at the rate of Rs.6 Lakhs (Rupees six Lakhs) per Bigha. 6. That having received the payment of the sum of Rs.5,00,000/- Lakhs (Rupees File Lakhs) as mentioned therein above the vendors have on this day handed over peaceful vacant possession of the Schedule land to the Purchaser and undertakes to extend all cooperation in the matter of the Purchaser’s uninterrupted and peaceful enjoyment of the land thereby agreed to be sold. 7. That the Vendors have no objection if the Purchaser obtains necessary permissions for construction over the land described in the Schedule below as and when required, from the competent authority.” (f) As per the evidence-on- affidavit submitted by the PW-1 (i.e. respondent), the appellants vide Declaration of handing over possession (Ext.3), had given possession of the suit land to the respondent. The PW-1 has further stated that he is using the suit land for dumping construction materials. Therefore, going by the agreement, the suit land worth a little more than about Rs.1.20 Crore was handed over to the respondent for a mere payment of Rs.5,00,000/- as advance. (g) Going by clause-3 of the agreement, the further installments was to be paid in mutual agreement. Therefore, going by the agreement, the suit land worth a little more than about Rs.1.20 Crore was handed over to the respondent for a mere payment of Rs.5,00,000/- as advance. (g) Going by clause-3 of the agreement, the further installments was to be paid in mutual agreement. Therefore, it cannot be believed that the appellants, who had delivered their land valued at a little over Rs.1.20 Crore would not ask for any payment and sit idle for about 9 months i.e. upto 10.04.2006, otherwise without any demand for money, there was no reason for the respondent to make payment of a further sum of Rs.4,28,000/- to the appellants. Thus, going by the statements made by PW-1 in paragraphs 4, 5(c) and 7 of his Evidence- on- affidavit, despite receiving possession of the "whole plot of land", the respondent took about a year to make further payment of Rs.4,28,000/-. The receipt of possession over the suit land is proved by PW-1 vide Ext.3 as indicated above. (h) Thus, when the appellants state in their evidence that at least 50% of payment was to be made before applying of sale permission, the said demand appears to be in consonance with clause 3 of the Agreement dated 21.07.2005 (Ext.1). Therefore, the finding by the learned Trial Court as given in paragraphs 10 and 11 of the impugned judgment that demand of 50% money was ‘certain other terms and conditions’ appears to be contrary to clause 3 of Ext.1, where it was provided that the parties would mutually agree upon installments. (i) In paragraph 9 of his evidence- on- affidavit, the PW-1 has taken a stand that on various occasions the appellants- defendants were asked to apply for sale permission to complete the sale transaction. This part of the evidence appears to be directly contradictory to the Clause-7 of the Agreement dated 21.07.2005 (Ext.1). The said evidence would stand excluded by the operation of Section 92 of the Evidence Act, 1872. In this regard, this court is constrained to record a finding that as per Clause-7 of the Agreement dated 21.07.2005 (Ext.1), it was the burden of the respondent to procure sale permission from the competent authority and such burden was never on the appellants. In this regard, this court is constrained to record a finding that as per Clause-7 of the Agreement dated 21.07.2005 (Ext.1), it was the burden of the respondent to procure sale permission from the competent authority and such burden was never on the appellants. (j) Moreover, at the cost of repetition, it is reiterated that the PW-1 had admitted in paragraphs 4, 5(c) and 7 of his Evidence- on- affidavit that he had received the possession of the "whole plot of land". Therefore, by the said statement the respondent has also admitted that he never doubted that the land he was occupying was "the whole plot of land". By this admission, the issue of non- demarcation of land by the respondent is not found to be fatal as the respondent, who was in possession of the "whole plot of land" could have measured the land in his possession. The respondent has stated that he was a builder and was even constructing a building on the land contiguous to the suit land and, as such, the court is bound to take judicial notice of the fact that the respondent as a builder has the competence and/or persons under him to measure land, because without knowledge of how to measure land, no builder can possibly construct a building. (k) In the written statement filed on 17.11.2007, the appellants had made a categorical statement in paragraph 19 that "In this connection it is stated that if the plaintiff agrees to pay the balance amount in within 3 (three) months, then the defendants are ready to obtain sale permission and execute the sale deed and once again demarcate the suit land." Therefore, ideally, with such statement by the appellants, the respondent could have prayed for decree on admission, but he did not do so and, as such, it can be held that the respondent was never ready and willing to perform his part of the contract. (l) The learned counsel for the respondent had referred to the cross examination of DW-1, where he has stated that he was not willing to sell the land to the respondent. (l) The learned counsel for the respondent had referred to the cross examination of DW-1, where he has stated that he was not willing to sell the land to the respondent. This part of the cross examination merely proves that now i.e. at the time of facing cross examination, the DW-1 was no longer willing to sell the land to the respondent, but in no way it proves that at the relevant time and at least on the date of filing of his written statement, the appellants were not ready and willing to sell the suit land to the respondent. At least with the receipt of the written statement, the respondent is deemed to be under a notice that if payment was made to the appellants within 3 months, they were ready to obtain permission and register the sale for the suit land. (m) Thus, in the totality of the discussions above, this Court is unable to concur with the finding recorded as well as the decision by the learned trial court on issue No.7, but on the contrary, this court is constrained to hold that the except for making a statement in the plaint, the respondent has not been able to prove his readiness and willingness to perform his part of the contract i.e. to obtain sale permission and to make payment of the balance sale consideration to the appellant within the agreed time or within 3 months from the date of filing of the written statement on 17.11.2007, as offered by virtue of statement made in paragraph 19 thereof. (n) Hence, the finding on issue No.7 is set aside and reversed by holding that the respondent is not entitled to decree of specific performance of the contract. The point of determination No.(a) is decided in the negative and against the respondent by holding that it is disproved that respondent was ready and willing to perform his part of the contract. 15. Now coming to the issues No.1, 2, 3, 4 and 6, there appears to be no infirmity in the findings recorded by the learned trial court. Therefore, as this court is concurring with the said findings, it is not deemed it necessary to repeat the same again and burden this judgment with reiteration. 16. 15. Now coming to the issues No.1, 2, 3, 4 and 6, there appears to be no infirmity in the findings recorded by the learned trial court. Therefore, as this court is concurring with the said findings, it is not deemed it necessary to repeat the same again and burden this judgment with reiteration. 16. In so far as the issue No.5 as framed by the learned trial court is concerned, this court finds that the respondent had made a prayer (ii) in the plaint as follows - "a decree directing the defendants to do all acts necessary to put the plaintiff in full possession of the schedule land." In the considered opinion of this court, if someone is already in possession of the "whole land", one would ideally pray for a decree for confirmation of possession and not for being put into possession of the suit land. Therefore, on one hand there is a statement by the respondent- plaintiff that he was given possession of the suit land vide Ext.3 and per contra, there is a statement by the appellant that they are in possession of the suit land and doing cultivation there. Under the provisions of Section 102 of the Evidence Act, 1872, the burden of proof lies on that person who would fail if no evidence at all were given on either side. In the present case, except for making a statement, none of the parties has proved their possession or animus possessendi. Therefore, as no evidence is tendered on either side, the respondent- plaintiff, who has made the claim of having possession over the suit land is bound to fail. The appellant has also not filed any counter-claim to be put into khas possession of the suit land. Moreover, as this court has arrived at a finding on point of determination No. (a) that the respondent is not entitled to specific performance of contract, in any event even assuming that the respondent has the possession over any portion of the suit land, the said possession would be without a valid right, title or interest. Moreover, as this court has arrived at a finding on point of determination No. (a) that the respondent is not entitled to specific performance of contract, in any event even assuming that the respondent has the possession over any portion of the suit land, the said possession would be without a valid right, title or interest. Hence, for the reasons as indicated above, this court is not inclined to concur with the finding on issue No.5 and the same is set aside and reversed by holding that the respondent is not in possession of the suit land and even assuming that he is in possession of any portion of the suit land, the same is without any right, title or interest. 17. On point of determination No. (b): (a) In view of the discussions above on point of determination No. (a), it is held that the judgment and decree passed by the learned trial court is not sustainable on facts and in law. (b) Resultantly, the finding as well as the decision of the learned trial court on issue No. 7 and 8 is not sustainable. The respondent- plaintiff is not found to be entitled to the relief of specific performance of the contract or for being put into possession of the suit land as prayed for. The respondent having no right, title, interest or possession over the suit land, is not entitled to the relief of permanent injunction as prayed for. (c) However, as regards issue No.8, this court finds that the unimpeachable evidence of the PW-1 is that he has paid a sum of Rs.9,28,000/- (Rupees Nine lakh twenty eight thousand only) to the appellant. The respondent has made an alternative prayer made in the plaint, which is - "In the alternative if the plaintiff is not found entitled to the relief as prayed for then a decree against the defendants for realization of the earnest money of Rs.9,28,000/- (Rupees Nine Lakhs twenty eight thousand) only along with interest @ 18% per annum from the date of payment till the date of realization." Under the provisions of section 21 of the Specific Relief Act, 1963, the respondent is held to be entitled to the refund / recovery of the sum of Rs.9,28,000/- (Rupees Nine lakh twenty eight thousand only), which has been paid by him to the appellant. The respondent is directed to repay the said sum within a period of three months from the date of this judgment. In the event money is repaid by the appellant within the outer period of 3 months from the date of this judgment, the appellants would have to pay interest at the rate of 12% per annum on and from 27.09.2006, being the date of filing of the suit till the date of repayment. In the event the appellant fails to repay the said amount together with 12% simple interest within the said outer period of 3 (three) months, then on and from the expiry of three months from the date of this judgment, the respondent would be entitled to future simple interest at the rate of 18% per annum till recovery. ORDER 18. The appeal stands allowed. The impugned judgment and decree dated 30.05.2011 passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati, in T.S. No. 200/2006 is set aside and reversed. 19. The respondent- plaintiff is not found to be entitled to the relief of specific performance of the contract. 20. The respondent is held to be entitled to the refund / recovery of the said sum of Rs.9,28,000/- (Rupees Nine lakh twenty eight thousand only). The respondent is directed to repay the said sum within a period of three months from the date of this judgment. In the event money is repaid by the appellant within the outer period of 3 months from the date of this judgment, the appellants would have to pay interest at the rate of 12% per annum on and from 27.09.2006, being the date of filing of the suit till the date of repayment. In the event the appellant fails to repay the said amount together with 12% simple interest within the said outer period of 3 (three) months, then on and from the expiry of three months from the date of this judgment, the respondent would be entitled to future simple interest at the rate of 18% per annum till recovery. 21. Let an appellate decree be prepared in terms of the order. 22. The parties shall bear their own cost. 23. The Registry shall send back the LCR.