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Allahabad High Court · body

2017 DIGILAW 1757 (ALL)

SALAMATULLAH v. CHARITTAR DOERI

2017-07-31

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This second appeal has been filed against the judgement and decree dated 23.8.1988 passed by Additional District and Sessions Judge, Azamgarh. 2. The plaintiffs filed Original Suit No. 636 of 1984 on 25.7.1984 with a relief for the specific performance of a contract, alleging that the defendant, an owner of an area admeasuring 466 kadis, after taking Rs. 4,000/- as earnest money and after entering into an agreement to sell on 12.9.1975, was not executing the sale-deed. The defendant denied the agreement and also raised the question of limitation, saying that the suit was barred by limitation. He also laid stress on the fact that the Suit itself was barred by Section 49 of the Consolidation of Holdings Act. The trial Court decreed the Suit directing the defendant to execute the sale-deed after receiving the remaining sum of Rs. 500/-. After the suit was decreed on 16.8.1985, the defendant filed a first appeal where it transpired that the plot numbers and their respective areas as were given out in the agreement had changed way back on 1.3.1973 and that on the day when the agreement was entered into i.e. on 12.9.1975, the defendant was the owner and Bhumidhar of only the plot No. 285 (area 9 kadies) and plot No. 326 (area 189 kadies) total 198 kadies, and that the defendant could be made liable only for selling 198 kadies. Consequently, after applying the provision of Sections 12(2) and 12 (3) of the Specific Relief Act, the First Appellate Court on 24.4.1986 enquired from the plaintiffs if they were ready for the transfer of 198 kadies only. To this proposal, the plaintiffs-appellants had readily agreed and had submitted their proposal before the the First Appellate Court. However, the Appellate Court on 23.7.1988 partly dismissed the appeal and partly allowed the same. While dismissing the appeal it confirmed the Trial Court’s finding regarding the factum of the agreement and regarding the payment of Rs. 4,000/- by the plaintiffs but the relief of execution of the sale-deed was denied and the defendants were required to refund Rs. 4,000/- to the plaintiffs. 3. While dismissing the appeal it confirmed the Trial Court’s finding regarding the factum of the agreement and regarding the payment of Rs. 4,000/- by the plaintiffs but the relief of execution of the sale-deed was denied and the defendants were required to refund Rs. 4,000/- to the plaintiffs. 3. Aggrieved thereof, the plaintiffs-appellants have filed the instant second appeal which was admitted on the following substantial questions of law : A. Whether the findings recorded by Additional District Judge vide order dated 24.4.1986 operated as res judicata and the lower appellate Court was justified in going contrary to the same. B. Whether the present agreement is hit by Section 56 of the Contract Act and was enforceable under Section 12 of the Specific Relief Act. C. Whether the decree passed by the lower appellate Court is based on ignorance of statement of plaintiff vide document 26C. 4. The learned counsel for the appellants has submitted that as per the agreement dated 12.1.1975, 7 plots, independent of each other, were to be transferred to the plaintiffs. He has stated that if only plot No. 285 area 09 kadies and plot No. 326 area 189 kadies were to be transferred to the plaintiffs then also the plaintiffs would be satisfied. He submits that by the order dated 24.4.1986 it was found that defendant being the owner and bhumidhar only of plots No. 285 and plot No. 326, could transfer only those two plots. Upon their transfer, the seller could not be held liable for having sold a fragment of his holding. Further more, he has submitted that if only two plots were to be sold the agreement would not be nullified as per the provisions of Section 56 of [The Indian] Contract Act, 1872. In fact he submits that a contract is not rendered impossible if there is a possibility to execute even a part of it. Further more, he has submitted that if only two plots were to be sold the agreement would not be nullified as per the provisions of Section 56 of [The Indian] Contract Act, 1872. In fact he submits that a contract is not rendered impossible if there is a possibility to execute even a part of it. He submits that Section 12(2) and (3) of the Specific Relief Act empowers a Court to direct a defaulting party to perform specifically so much of the contract as he can actually perform and pointed out to the relevant provisions of Section 12 (2) and (3) of the Specific Relief Act which are being reproduced here as under : Section 12(2) : Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, an award compensation in money for the deficiency. Section 12(3) of Specific Relief Act, 1963 : Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either - (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does no admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party - (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b),[ pays or has paid] the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. 5. 5. In the end he submitted that it was definitely possible for the defendant to transfer the two plots, namely, plot No. 285 and plot No. 326 and the Appellate Court should have decreed the suit for specific performance at least to that extent. 6. Learned counsel for the appellant, to support his submissions, has placed reliance on the decision rendered by the Supreme Court in Rachakonda Narayana v. Ponthala Parvathamma and another, AIR 2001 (8) SCC 173 . Paragraph 8 of the above decision reads as under : A perusal of sub-section (3) of Section 12 shows that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. However, latter part of the provisions permits a Court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. If a suit is laid by the other party, the Court may direct the defaulting party to perform that part of the contract which is performable on satisfying two preconditions, i.e., (i) the plaintiff pays or has already paid the whole of the consideration amount under the agreement and that (ii) plaintiff relinquishes all claims to the performance of other part of the contract which defaulting party is incapable to perform and all rights to compensation for loss sustained by him. Thus, the ingredients which would attract specific performance of the part of the contract, are : (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent and (ii) the other party to an agreement must, in a suit for such specific performance, either pays or has paid the whole of the agreed amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of other part of contract which defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or latches or any other disability on the part of other party. Poorna Nand v. Prakashwati, AIR 2006 Uttranchal 761, is also to that effect. 7. In reply, learned counsel for the respondents submitted that when as per Section 56 of the Indian Contract Act, the whole of the agreement was not enforceable then there was no other option left with the Appellate Court but to dismiss the suit. He has relied upon the decisions rendered in Piarey Lal v. Hori Lal, AIR 1977 SC 1226 ; Bhaurao Shamrao Bhalme and others v. Mahadeo Raghu Yelekar, AIR 1979 Bombay 208; Bahadur Beg v. Rahmat Khan, 1978 ALJ 733; Ved Prakash Gupta v. Shishu Pal Singh, 1985 (11) ALR 1 and has submitted that such an agreement which is incapable of being executed in its entirety, specially when consolidation proceedings intervene then the Court may not direct the execution of it. Learned counsel for the respondents also laid stress on the fact that the suit was barred by Limitation and by the provisions of Section 49 of the Consolidation of Holdings Act. 8. I have heard the learned counsel for the parties and perused the record. I find that the two plots, namely, plot No. 285 and plot No. 326 were such plots which had their own identity. The agreement was entered into on 12.9.1975 and the consolidation proceedings were over in March, 1973, which meant that on the date when the agreement was entered into, the defendant was definitely the owner and bhumidhar of the two plots, namely, plots No. 285 and plot No. 326 and this is what has also been held by the Appellate Court. The law as has been laid down by the Supreme Court in Rachakonda Narayana v. Ponthala Parvathamma and another, AIR 2001 (8) SCC 173 , squarely covers the case of the plaintiffs. When the defaulting party could perform his part of the contract only to the extent he owned the property and the plaintiff was ready to purchase only the two plots which were actually owned by the defendant then there was no difficulty in decreeing the suit for specific performance to that extent. 9. All other questions regarding limitation etc. When the defaulting party could perform his part of the contract only to the extent he owned the property and the plaintiff was ready to purchase only the two plots which were actually owned by the defendant then there was no difficulty in decreeing the suit for specific performance to that extent. 9. All other questions regarding limitation etc. were abandoned by the respondents before the First Appellate Court itself and, therefore, they cannot be re-agitated before this Court. 10. Under such circumstances, I hold that the agreement as was entered into by the parties on 12.9.1975 can be enforced to the extent that the defendant can be directed to transfer plot No. 285 and plot No. 326 area 9 kadies and 189 kadies respectively. 11. Thus, the suit for specific performance is decreed to the extent that the defendant would transfer the plot No. 285 and plot No. 326 area 09 kadies and 189 kadies respectively to the defendant by executing a sale-deed and the defendant shall be paid the remaining sum of Rs. 500/-. Here it may be clarified that though the amount of Rs. 4,500/- was a sale consideration for all the 7 plots which were agreed to be sold by the defendant to the plaintiff but today under the present circumstances when prices have risen, the price of Rs. 4,500/- would suffice for the two plots, namely, plot No. 285 (area 09 kadies) and plot No. 326 (area 189 kadies). 12. Under such circumstances, the substantial questions of law as were framed by the Court are answered and the second appeal is allowed. The suit is decreed to the extent stated above.