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2019 DIGILAW 518 (ORI)

Bhajaman Behera v. Bishnu Charan Pattanaik

2019-08-09

A.K.RATH

body2019
JUDGMENT : A.K.Rath, J. This appeal at the instance of the defendant assails the confirming judgment of the learned Addl. Civil Judge (Senior Division), Puri in Title Appeal No.15/104 of 1994/1992. 2. Case of the plaintiff-respondent was that the defendant agreed to sell the suit property for a consideration of Rs.4,000/- to press his legal necessity. Defendant had executed an agreement to sell on 19.5.1987 in his favour on receipt of advance of Rs.2,167/-. It was agreed that the sale was to be executed within three months and fifteen days after receipt of the balance amount of Rs.1,833/-. Possession was delivered to him. He requested the defendant to receive the balance consideration and execute the sale deed, but the defendant maintained a sphinx like silence. He had sent balance consideration amount of Rs.1,833/- by money order and notice to the defendant to execute the sale deed after receipt of the amount. But then, the defendant did not execute the sale deed. With this factual scenario, he instituted the suit for specific performance of contract. 3. Defendant filed the written statement pleading that the agreement Ext.1 was executed as security loan of Rs.2,000/- returnable within three and half months. A further agreement was executed simultaneously on the same day to return the agreement after receipt of Rs.2,187/-. 4. On the inter se pleadings of the parties, learned trial court struck four issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the plaintiff was ready and willing to perform his part of the contract and accordingly directed the defendant to execute the sale deed within one month after receipt of the balance amount of Rs.1,833/-. Unsuccessful defendant filed appeal before the learned District Judge, Puri, which was subsequently transferred to the learned Addl. Civil Judge (Senior Division), Puri and re-numbered as Title Appeal No.15/104 of 1994/1992. The appeal was eventually dismissed. 5. The appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, B and C of the appeal memo. The same are - "A. Whether the requirement of Section 16(C) of the Specific Relief Act regarding readiness and willingness to perform the plaintiff-respondent's part in the contract under Ext.1 have been satisfied in the absence of specific pleadings to this effect and specific statement that he is ready and willing even on the date of deposition as required under law. B. Whether the contract under Ext.1 enforceable in law as time was the essence of contract as envisaged under Sec.55 of the Contract Act in view of (i) The specific time stipulation fixed in the agreement Ext.1. (ii) The execution of Ext.9 stipulating return of advanced money within the stipulated time with interest with no further stipulation for extension and payment of further interest; (iii) The defendant-appellant's action in sending notices for return of the advanced money under Exts.A and C. (C) Whether the learned courts below were correct in decreeing the suit for specific performance of contract despite the statutory cautions prescribed u/s 20 of the Specific Relief Act as; (i) The terms of the contract Ext.1 gives an unfair advantage to the plaintiff-respondent over the defendant-appellant and it would involve great hardship unforeseen earlier; (ii) The contract under Ext.1 is inequitable and unconscionable being grossly under valued and the proper valuation would have ousted the pecuniary jurisdiction of the trial court. (iii) The contract under Ext.1 was executed as security for the loan which aspect has not been considered by the courts below." 6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate for the appellant and Mr. Ahsutosh Sahoo on behalf of Mr. S.K. Dash, learned counsel for the respondent. 7. Mr. Mohanty, learned Senior Advocate for the appellant argued with vehemence that there was no pleading that the plaintiff was/is ready and willing to perform his part of the contract. He strenuously contended that the plaint does not contain the requisite allegation that the plaintiff was ready and willing to perform his part of the contract in terms of Forms 47 and 48, which was necessary to obtain a decree for specific performance of contract. Evidence beyond the pleading is to be ignored. Time is the essence of the contract. On a conjoint reading of Exts.1 and 9, it is evident that the defendant had offered the return of money stipulated therein under the notices Exts.A and C. Thus the contract under Ext.1 becomes unenforceable after the stipulated time for return of money. The courts below failed to consider the essence of the defendant's plea that Ext.1 was executed as a security for loan. The courts below failed to consider the essence of the defendant's plea that Ext.1 was executed as a security for loan. To buttress the submission, he placed reliance on the decisions of the apex Court in the case of Abdul Khader Rowther v. P.K. Sura Bai, 1990 AIR(SC) 682 and Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam, 1997 AIR(SC) 463 and Kalyan Singh Chouhan v. C.P. Joshi, 2011 (11) SCC 786 . 8. Per contra, Mr. Sahoo, learned counsel for the respondent submitted that the defendant was in need of money for repayment of debt. He executed an agreement to sell, Ext.1, on 19.5.1987. Consideration amount was fixed at Rs.4,000/-. Plaintiff paid an amount of Rs.2,167/- to the defendant. The balance amount was to be paid within three and half months from the date of agreement. Plaintiff sent the balance amount by money order, but the same was returned. Plaintiff sent a notice to execute the sale deed on receipt of balance consideration amount. Plaintiff was/is ready and willing to perform his part of contract. He placed reliance on the decisions of the apex Court in the case of Syed Dastagir v. T.R. Gopalakrishnasetty, 1999 AIR(SC) 3029, Narinderjit Singh v. North Star Estate Promoters Ltd., 2012 AIR(SC) 2035 and Biswanath Ghosh (dead) by LRs & others v. Gobinda Ghosh @ Gobindha Chandra Ghosh, 2014 AIR(SC) 1582. 9. Before adverting to the contentions raised by the learned counsel for the parties, it is necessary to refer to the decisions cited by the learned counsel for the parties. 10. In Abdul Khader Rowther, plaintiff brought a suit for specific performance of a covenant for reconveyance. The plaint did not contain the requisite allegation that he is ready and willing to perform his part of the contract in terms of Forms 47 and 48, which was necessary to obtain a decree for specific performance of contract. The apex Court held that the equitable remedy recognized by the Specific Relief Act cannot be granted on the basis of such pleadings and evidence. 11. In Pandurang Ganpat Tanawade, the averment in the plaint was that the purchaser sent registered notices to the seller to execute the sale deed. As per agreement, he is willing to pay fees required for sale deed, costs of registration and balance amount of sale deed. 11. In Pandurang Ganpat Tanawade, the averment in the plaint was that the purchaser sent registered notices to the seller to execute the sale deed. As per agreement, he is willing to pay fees required for sale deed, costs of registration and balance amount of sale deed. The apex Court held that buyer not only averred, but also proved that he was ready and willing to perform his part of contract. 12. In Syed Dastagir, the apex Court held that in construing a plea in any pleading, court must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague, but still could be gathered what he wants to convey through only by reading the whole pleading. To gather true spirit behind a plea, the plaint should be read as a whole. 13. In Narinderjit Singh, the apex Court held that the concurrent findings recorded by the trial court and the lower appellate court on the issues of execution of the agreement by the appellant's father and the respondent's readiness and willingness to perform its part of the agreement were based on correct evaluation of the pleadings and evidence of the parties and the learned Single Judge of the High Court did not commit any error by refusing to upset those findings. 14. In Biswanath Ghosh, the apex Court held that in a suit for specific performance, the plaintiff must be able to show that he is ready and willing to carry out those obligations. For the compliance of Section 16(c) of the Act, it is not necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. 15. Thus the proposition of law that emerges : Readiness and willingness cannot be treated as a strait jacket formula. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. 15. Thus the proposition of law that emerges : Readiness and willingness cannot be treated as a strait jacket formula. The language of Section 16 (c) does not require any specific phraseology, but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. The compliance of readiness and willingness has to be in spirit and substance and not in letter and form. Therefore to insist for mechanical production of the exact words of a statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded. 16. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the decisions cited supra, this Court finds that the defendant executed an agreement to sell the suit property in favour of the plaintiff for a consideration of Rs.4,000/-. He received an amount of Rs.2,167/- towards part consideration. It was agreed that the sale deed was to be executed within three months and fifteen days after receipt of the balance amount of Rs.1,833/-. Possession was delivered to the plaintiff. Plaintiff sent an amount of Rs.1,833/- by money order. Receipts had been exhibited as Exts.4 and 5. He sent legal notice requesting to execute the registered sale deed on receipt of Rs.1,833/-. But then, the defendant did not receive the same. In paragraph-5 of the plaint, it is stated that the plaintiff has requested the defendant to receive the balance amount of Rs.1,833/- from him and execute the registered sale deed. But the defendant did not pay any heed. The plaintiff sent money order of Rs.1,833/-. He had also sent legal notice to the defendant to execute the sale deed. But the defendant returned the money order as well as notice. Thus it cannot be said that the plaintiff was not ready and willing to perform part of his contract. 17. But the defendant did not pay any heed. The plaintiff sent money order of Rs.1,833/-. He had also sent legal notice to the defendant to execute the sale deed. But the defendant returned the money order as well as notice. Thus it cannot be said that the plaintiff was not ready and willing to perform part of his contract. 17. Order 6 Rule 3 CPC provides the forms in Appendix-A when applicable, and where they are not applicable, forms of the like character, as nearly as may be, shall be used for all pleadings. Form 47 and 47 of the Appendix-A deals with Specific Performance (No.1) and Specific Performance (No.2). The words "as nearly as may be" connote that to gather true spirit behind a plea, the plaint should be read as a whole. Whether the plaintiff has performed his obligations, the Court has to see the pith and substance of the plea. The plaint is drafted by counsel; hence aforesaid difference of pleas which inevitable differ from one to other. 18. On an anatomy of pleadings and evidence, learned appellate court held that the defendant in his cross-examination has admitted that he had executed Ext.1 after going through its contents. Ext.1 reveals that defendant wanted to sell the suit property. Consideration of the suit property was fixed at Rs.4,000/-. Defendant received Rs.2,167/- as advance. It was agreed that the plaintiff was to pay Rs.1,833/- to the defendant within three months and fifteen days after which the defendant is to execute the sale deed in favour of the plaintiff. Another document was executed on the same day between the parties i.e. Ext.9. It was stipulated in Ext.9 that in case defendant returns Rs.2,167/- within three months and ten days from the date of execution of the agreement, then plaintiff will return Ext.1 to him. Both the documents reveal that the defendant had received an amount of Rs.2,167/- towards part consideration from the plaintiff. P.W.1 plaintiff deposed that he had offered the balance amount to the defendant on several times, but the defendant did not accept. He sent the same through money order. But the money order was returned. Thereafter, plaintiff sent a legal notice. Thus plaintiff was ready and willing to perform part of his contract. There is no perversity in the findings. 19. The next question crops up as to whether time is the essence of the contract ? He sent the same through money order. But the money order was returned. Thereafter, plaintiff sent a legal notice. Thus plaintiff was ready and willing to perform part of his contract. There is no perversity in the findings. 19. The next question crops up as to whether time is the essence of the contract ? 20. In Chand Rani (Smt.) (Dead) by LRs. vs. Kamal Rani (Smt) (dead) by LRs., 1993 (1) SCC 519 , the apex Court held: "The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the contract." xxx xxx xxx ".....even where the parties have expressly provided that time of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; for instance, if the contract were to include clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contract." xxx xxx xxx ......in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example; the object of making the contract." 21. Defendant executed the agreement to sell on 19.5.1987. He received an amount of Rs.2,167/- towards part consideration. There is a stipulation in the agreement that he will execute the sale deed in favour of the plaintiff within three months and fifteen days after receipt of balance consideration of Rs.1,833/-. Possession was delivered to the plaintiff. The plaintiff sent an amount of Rs.1,833/- by money order. He had also sent the legal notice to the defendant to execute the sale deed, but then the same was returned. The suit was instituted on 19.10.1987. Possession was delivered to the plaintiff. The plaintiff sent an amount of Rs.1,833/- by money order. He had also sent the legal notice to the defendant to execute the sale deed, but then the same was returned. The suit was instituted on 19.10.1987. Clause in the agreement shows that time was not the essence of the contract. The substantial questions of law are answered accordingly. 22. The decision in the case of Kalyan Singh Chouhan is distinguishable on facts. The same pertains to election dispute. 23. In the result, the appeal fails and is dismissed. There shall be no order as to costs.