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2018 DIGILAW 628 (ORI)

Prakash Kumar Sahoo v. Kedarnath Ray

2018-06-29

D.DASH

body2018
JUDGMENT The plaintiff of Civil Suit No. 185 of 2008 being aggrieved by the judgment and decree passed by the learned Civil Judge (Sr. Division) 1st Court, Cuttack has filed this appeal under section 96 of the Code of Civil Procedure arraigning the sole defendant as the respondent. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial Court. 3. The plaintiff’s suit is for Specific Performance of Contract with the prayer for a direction to the defendant to sale the property described in the Schedule-A of the plaint and for permanent injunction. It is the case of the plaintiff that on 03.03.2004, the defendant having agreed to sale the property described in Schedule-A of the plaint to the plaintiff for sum of Rs. 13.00 lakhs had executed an agreement to that effect under Ext. 1 standing registered. As per the said agreement, the defendant was to execute the sale-deed within a period of one year. It is his further case that the defendant had executed the agreement on receipt of part consideration of Rs. 12.00 lakhs and the rest sum of Rs. 1.00 lakh was agreed to be paid at the time of registration of the sale-deed. The plaintiff alleged that the defendant failed to carry out the obligation under the agreement by coming forward to execute the sale-deed within the stipulated time, on receipt of balance consideration of Rs. 1.00 lakh and instead he demanded more money for the said sale. The plaintiff next states that in pursuance of the said contract, on two subsequent occasions, he paid a sum of Rs. 5.00 lakhs to the defendant towards the enhanced consideration as subsequently agreed upon. He further alleges that the defendant thereafter also did not come forward to execute the sale deed. So, the plaintiff issued a notice asking him to perform his part of the contract, stating that he (the plaintiff) has been ready and willing to perform his part of the contract. But as no such development took place, the suit has been filed. 4. The defendant contested the suit by filing written statement. So, the plaintiff issued a notice asking him to perform his part of the contract, stating that he (the plaintiff) has been ready and willing to perform his part of the contract. But as no such development took place, the suit has been filed. 4. The defendant contested the suit by filing written statement. It is his case that the plaintiff is a money lender and therefore on one occasion, the defendant being in urgent need of money had requested the plaintiff for accommodating him by advancing loan of Rs. 1.00 lakh with a condition that he would return the same with interest within a year. The plaintiff then asked the defendant for execution of a registered agreement that is the suit agreement. It is stated that the plaintiff has practiced fraud upon the defendant taking advantage of his financial condition and extreme need and urgently in getting the money. It is further stated that on subsequent occasion the defendant took a sum of Rs. 2.00 lakhs when he was badly in need of the same for his treatment. It is then stated that the plaintiff at that time also managed to obtain two receipts from him. It is his specific case that he has never entered into any agreement with the plaintiff for sale of the property described in Schedule-A of the plaint. It is his further case that he has taken a sum of Rs. 3.00 lakhs from the plaintiff as loan to be paid with interest and all these documents i.e. registered agreement, money receipts (Ext. 1 to 3) have been created by the plaintiff without his knowledge and consent having an eye over his properties and in order to grab the same. 5. The trial Court with the above rival pleadings has framed as many as seven issues, which are:- a. Whether the suit is maintainable under law? b. Whether there is case of action to file this suit? c. Whether the suit is barred by law of limitation? d. Whether the defendant executed an agreement dated 03.03.2004 for the sale of the suit land in favour of the plaintiff and if so whether the above agreement is valid and enforceable under law? e. Whether the plaintiff is entitle for registration of a sale deed in his favour per suit agreement? f. Whether the plaintiff is entitle for permanent injunction as prayed for? e. Whether the plaintiff is entitle for registration of a sale deed in his favour per suit agreement? f. Whether the plaintiff is entitle for permanent injunction as prayed for? g. To what other reliefs the plaintiff is on titled for. 6. Going to answer the crucial issues i.e. issue No. (d) and (e) in the backdrop of the pleadings and upon analysis of evidence both oral and documentary, the trial Court has first recorded the finding as under:- xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx “In the present case as it shows from the evidence on record that the parties have entered into an agreement for sale of the suit property, there is no due that both the parties are competent never for entering into the agreement as per Ext. 1. Ext. 1 was also entered into between the parties for sale of the property for valuable consideration of Rs. 13.00 lakhs. So, in such circumstances I think Ext. 1 is no doubt a valid contract within the meaning of section 20 of the Contract Act.” 7. Next proceeding to decide as to whether the agreement Ext. 1 is enforceable or not and whether the decree for specific performance of the contract, in the facts and circumstances of the case if would follow, the trial Court having again proceeded to analyse the evidence on record in the backdrop of the rival pleadings has finally stated that the agreement as it stands is not to be enforced and the prayer for directing the defendant to execute and register the sale deed cannot be allowed. For better appreciation, the relevant part of the judgment are reproduced below:- “ xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx In the present case, admittedly the plaintiff is an Advocate, whereas defendant no. 1 badly in need of money as he was ill, Even due to his illness, one of his legs has been imputed. There is no dispute that the suit property is the dwelling house of the defendant. It is also pleaded by the defendant as he has urgent need of money for his treatment and when he has asked the plaintiff for money on a loan basis. The plaintiff put forth a condition before him for execution of Ext. 1 and accordingly he signed the document vide Ext. 1. It is also pleaded by the defendant as he has urgent need of money for his treatment and when he has asked the plaintiff for money on a loan basis. The plaintiff put forth a condition before him for execution of Ext. 1 and accordingly he signed the document vide Ext. 1. It is also his case that he has agreed between them only to return the loan amount. Therefore, judged in the light of section 20 of the Specific Relief Act, either there is valid reason before him for exercising the discretion. Apart from the above aspect as it shows from the suit agreement so also from the case of the plaintiff that it was agreed between the parties for sale of a suit property for a consideration of Rs. 13.00 lakhs, a sum of Rs. 12.00 lakhs was also paid to the defendant as earnest money at the time of execution of Ext. 1 and it was agreed between the parties for execution and registration of the required sale deed within one year on payment of the balance consideration on money of Rs. 1.00 lakh only but it is the case of the plaintiff that goes on paying Rs. 5.00 lakhs more on different dates vide Ext. 2 and 3 i.e. much after the date fixed from execution of the sale deed, but the plaintiff has not assigned any reason as to why he went on paying the money even Rs. 4.00 lakhs more than that of the consideration amount paying and gain without execution of sale deed. It is the settled principle of law that while on forcing an agreement for sale clear proof of the certification of the consigns of the Court is essential but in the present case considering the stand taken by the plaintiff that the consideration money was Rs. 13.00 lakhs but he went on paying upto Rs. 17.00 lakhs even without execution of the sale deed, I think the plaintiff has not come to the Court with clean hands regarding the real agreement between the parties. In a case reported in 1994(II) C.C.C. page-800, it has been observed that whether the plaintiff has not come with clean hands, remedy being discriminatory can be refused. 17.00 lakhs even without execution of the sale deed, I think the plaintiff has not come to the Court with clean hands regarding the real agreement between the parties. In a case reported in 1994(II) C.C.C. page-800, it has been observed that whether the plaintiff has not come with clean hands, remedy being discriminatory can be refused. So, on over all consideration of the facts and circumstances of the case, I am of the view that it is a fit case whether the Court is to be guided by the judicial principle within the meaning of section 20 of the Specific Relief Act and as such I am of the view that the suit contract is not to be enforced and as such the plaintiff is not entitled for execution and registration of the required sale deed” 8. With the above, the trial Court has lastly taken up the exercise of answering the question; whether the plaintiff is entitled for the relief of the refund of the consideration amount and damages. Again making elaborate discussion of evidence on record, the answer finally has been returned in favour of the plaintiff that he is entitled to refund of Rs. 12.00 lakhs with interest @ of 8% per annum with effect from 03.03.2004 till payment. 9. Heard the appellant in person. None appeared on behalf of the respondents who have been substituted in place of the original respondent (since dead) despite opportunities in that regard. The appellant submitted that the trial Court had completely erred both in fact and law by refusing to grant the prayer for a decree for specific performance of the contract i.e. the agreement under Ext. 1 for sale of the property described in schedule A of the plaint owned by the defendant. He further submitted that when Ext. 1 has been accepted to be a genuine document and the defence that it has been obtained by practicing fraud; taking advantage of weak mental and physical condition of the defendant in view of his sufferings, the Court had no further option but to pass a decree for a specific performance of the said agreement under Ext. 1. 1 has been accepted to be a genuine document and the defence that it has been obtained by practicing fraud; taking advantage of weak mental and physical condition of the defendant in view of his sufferings, the Court had no further option but to pass a decree for a specific performance of the said agreement under Ext. 1. He further submitted that in the facts and circumstances of the case, as also keeping in view the evidence on record, the trial Court ought not to have gone to exercise the discretion banking upon the provisions of section 20 of the Specific Relief Act. It was submitted that the trial Court has erred in law by pressing into service the provision under section 20 of the Specific Relief Act in the present case in not passing a decree for specific performance of the agreement and according to him, the same has been illegally and arbitrarily exercised which has rather caused injustice to the suitor and to his sufferance providing advantage to the defendant. 10. In view of the submission advanced by the appellant, the only point being formulated now stands for examination is as to whether the trial Court has committed any error by refusing to pass a decree for specific performance of contract by not directing the defendant to execute the registered sale deed in favour of the plaintiff pursuant to the agreement for sale of the property in question, under Ext. 1. The answer to the same would judge the sustainability of the finding of the trial Court and govern the result of the lis in hand. 11. The settled position of law is that the grant of relief of specific performance of contract is discretionary and is not a matter of right. The Court in deciding the proper course has to see all those host of surrounding circumstances, right from the time of agreement up till the decision, particularly ascertaining as to if the proposed vendee secured an unfair advantage over the proposed vendor when he entered into an agreement whether performance of contract would involve the defendant in some hardship which he had not foreseen. Moreover, the approach of the proposed vendee must not be found to be unclean in any manner. 12. The equitable discretion to grant or not to grant the relief of specific performance also depends upon the conduct of the parties. Moreover, the approach of the proposed vendee must not be found to be unclean in any manner. 12. The equitable discretion to grant or not to grant the relief of specific performance also depends upon the conduct of the parties. The plaintiff therefore is called upon to prove necessary ingredients so that discretion would be exercised judiciously in his favour. In order to come to a conclusion as to if the case is a fit one for grant of a decree for specific performance of the contract, the Court has always to be circumspect and to advert its judicial attention towards the facts and circumstances of the case in hand. 13. The agreement in question Ext. 1 is dated 03.03.2004. The parties have agreed that the sale deed pursuant to the said agreement was to be executed within a period of one year on receipt of balance consideration of Rs. 1.00 lakh as against the total and finally agreed consideration of Rs. 13.00 lakhs out of which a sum of Rs. 12.00 lakhs had already been received by the defendant at the time of agreement. It is not there in the evidence that the plaintiff shortly before or after the expiry of the period, intimated the defendant to come forward under the agreed terms to execute the sale deed in pursuance of the agreement under Ext. 1 and facilitate its registration. The demand is made for the first time by serving legal notice, after lapse of four years since the agreement and even three years after the expiry of the original period provided and agreed for the same, under Ext. 1. The suit has come to be filed on 11.4.2008. The plaintiff is not coming out with any explanation whatsoever for such unusual approach in the matter and maintaining total silence for such a long period knowing well that the property in question being immovable, situated in urban area, the price has been tremendously on rise every moment. The property in question is a dwelling house of the defendant. The evidence has been let in by plaintiff to show that he has paid a further sum of Rs. 5.00 lakh only was required to be paid. This payment of Rs. 5.00 lakhs again is much after the expiry of the period set out for execution of the registered sale deed as provided under Ext. 1. The evidence has been let in by plaintiff to show that he has paid a further sum of Rs. 5.00 lakh only was required to be paid. This payment of Rs. 5.00 lakhs again is much after the expiry of the period set out for execution of the registered sale deed as provided under Ext. 1. The payments are said to have been made on different dates and such payments of excess amount by the plaintiff clearly shows that the agreement as regards the consideration, was not so taken as final and determinative either as being just and proper or for the delay and latches on the part of the plaintiff in performing his part of the contract. The ordinary inference thus touches the mind that the price escalation has played a major role and for that reason, the plaintiff readily agreed to pay more which is quite substantial amount. But here it again gives rise to a question as to what was then the agreed considerations. The plaintiff’s oral version that it was fixed at Rs. 17.00 lakhs and then it is also not so clearly pleaded that the balance consideration as per earlier agreed consideration got paid and included within this subsequently paid consideration of Rs. 5.00 lakhs or not. If that is so, accepting the plaintiff’s case as laid, it does not appeal to mind as to why the plaintiff again preferred to remain under the mercy of the defendant for execution of the sale deed and registration without insisting for that then and there on final payment of consideration when he had already experienced one such situation to his sufferance. Nothing more is stated on this score as regards the period agreed upon for execution of the sale deed after payment of that sum of Rs. 5.00 lakhs. The first payment of amount after the agreement is made on 17.03.2005 (Ext.2) which is after the expiry of period of execution of the sale deed as provided under Ext. 1 and the next one is on 23.8.2005 (Ext.3) which is much thereafter. The plaintiff has not placed any material to show as to what was the further agreement with the defendant after expiry of the period provided for execution of the sale deed under Ext. 1. 14. The appellant has placed reliance upon the decision in case of “Nadiminti Surjya Narayan Murthi (Dead) through L.Rs. The plaintiff has not placed any material to show as to what was the further agreement with the defendant after expiry of the period provided for execution of the sale deed under Ext. 1. 14. The appellant has placed reliance upon the decision in case of “Nadiminti Surjya Narayan Murthi (Dead) through L.Rs. vs. Kothurthi Krishna Bhaskara Rao and others; AIR 2017 SC 5052 , in support of his contention that the trial Court in the facts and circumstances of the case and on the basis of the evidence on record is not justified in refusing to pass the decree granting the principal relief to the plaintiff which is the ordinary rule and can be denied only when equitable considerations point to its refusal and the circumstances so that the damages would constitute adequate relief. In the above cited case, the vendors after executing an agreement for sale of the property with the plaintiff on 18.01.1983 on receipt of part consideration went on deferring the matter in executing the registered sale deed. However, shortly after the said agreement for sale i.e. even before expiry of one month from the first agreement for sale, he had executed a sale deed in favour of another person pursuant to an agreement purported to have been entered into on 04.01.1983 with that person. The Court affirmed the finding that the agreement for sale dated 18.01.1983 is a bonafide one whereas the agreement dated 4.1.1983 is vague one and created to scuttle the agreement for sale, dated 18.1.1983 as agreed to be followed by execution of the sale deed and that sale deed in favour of another is even before the expiry of the period of performance of the agreement for sale with the plaintiff which is thus obviously to avoid performance of the agreement dated 18.01.1983. in that case, facts were also placed before the Court that during pendency of the litigation, some more transactions had taken place. In such factual settings of the case with the finding as aforesaid, the Court ultimately directed the specific performance of contract. The conduct of the proposed vendor was found to be tainted with clandestineness. The facts of the present case are however quite distinguishable. In such factual settings of the case with the finding as aforesaid, the Court ultimately directed the specific performance of contract. The conduct of the proposed vendor was found to be tainted with clandestineness. The facts of the present case are however quite distinguishable. Here the approach of the defendant in the matter is in no way seen to be with a view to scuttle the agreement for sale standing in favour of the plaintiff or by creation of some documents. The sales as have been pointed out by the plaintiff have been made only during pendency of the appeal. Suffice is to say that such transaction would be subject to the result of the litigation and therefore, those are of no consequence in so far as this litigation is concerned, and not binding on the plaintiff and cannot be viewed in that light so as to have been made to defeat the legal right of the plaintiff and in fact those are not also so projected in that way, the beneficiary under the transaction would therefore be at liberty to workout inter se right in accordance with law only as per the fall out of the judgment and accordingly face the consequence. The other cited decision is P. Disouja vs. Shondrilo Naidu AIR 2004 SC 4472 . It was a case where the vendor was the landlord of the vendee. He accepted part payment from time to time without any demur He redeemed the mortgage of the land in question on receiving the payments from the vendee. When the vendor came to plead that the plaintiff be denied with a decree of specific performance of contract having regard to escalation of price, the Court repelled the same. The factual settings of the case are completely different. So the ratio of the above cited decisions do not come to the aid of the plaintiff. The trial Court in the case in hand as per the aforesaid discussion thus having commented upon that the conduct of the plaintiff in saying that those are not wholly above board, this Court finds no justifiable reason to record any disagreement with the same. 15. For the aforesaid discussion and reasons, this Court finds that the trial Court by refusing to pass a decree for specific performance of contract i.e agreement under Ext. 15. For the aforesaid discussion and reasons, this Court finds that the trial Court by refusing to pass a decree for specific performance of contract i.e agreement under Ext. 1, did commit no such mistake that it can be said that the exercise of discretion in the way done by finally directing the defendant to refund the received consideration amount with interest at the rate as awarded is illegal and arbitrary. In the result, the appeal stands dismissed. The parties are to bear their respective cost of litigation throughout. Appeal dismissed.