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2019 DIGILAW 598 (ORI)

Naba Bewa v. S. A. Hassan

2019-09-23

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This appeal at the instance of defendant nos.1 to 6 assails the affirming judgment of the learned Addl. District Judge, Bhubaneswar in RFA No.2/17 of 2003. 2. Brief facts leading to this appeal are as under : The Government of Orissa granted lease of the suit land in favour of Arakhita Jena, predecessor-in-interest of the appellants on 14.7.1969. Possession of the land was delivered to the lessee on 22.4.1970. To press the legal necessity, Arakhita Jena entered into an agreement for sale on 29.8.1970 with the plaintiff-respondent no.1. Under the terms of the agreement, he agreed to sell the property for a sum of Rs.2800/-. On the date of execution of the agreement, he received Rs.2300/- and delivered possession to the plaintiff. Agreement stipulated that permission of the State of Orissa - defendant no.7 would be necessary for alienation of the property. He took up the responsibility to obtain permission from defendant no.7 and thereafter execute the tripartite deed in favour of the plaintiff. It was agreed between the parties that the balance consideration amount of Rs.500/- shall be paid within a month of transfer. Arakhita Jena made an application to the Government on 27.12.1970 to accord permission to alienate the land. He died in the year 1974 leaving behind the appellants. Thereafter, his widow-Naba Bewa, defendant no.1, for herself and on behalf of minor son-defendant no.4 and defendants 2 and 3 made an application to the Government on 29.10.1980 to transfer the land. Permission was accorded on 26.12.1986. Thereafter, the plaintiff approached the defendants to receive the balance consideration amount and execute the tripartite lease deed. Plaintiff issued notice on 19.1.1987 to the defendants to receive balance amount and execute the sale deed. But there was no response. Plaintiff was/is ready and willing to perform part of the contract, but the defendants failed to perform the part of the contract. With this factual scenario, he instituted the suit for specific performance of contract. 3. Defendants 1 to 6 filed a written statement pleading, inter alia, that the alleged agreement to sell is a fake one. Arakhita Jena was the karta of the family. He acquired the suit property by means of lease. He had no right to execute the sale deed. He had no legal necessity to alienate the land. Plaintiff was a police officer. Arakhita Jena was the karta of the family. He acquired the suit property by means of lease. He had no right to execute the sale deed. He had no legal necessity to alienate the land. Plaintiff was a police officer. Arakhita Jena was an advocate clerk in the Criminal Court. They had very cordial relationship. Plaintiff had not taken any steps within the reasonable time. After death of Arakhita Jena, defendants succeeded to the property. They are in possession of the same. Defendant no.7-State of Orissa contested the suit without filing written statement. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the agreement to sell, Ext.1, had been scribed by Arakhita Jena. He had purchased the stamp papers. Ext.1 was executed on 19.8.1970. Possession of the suit land was delivered to the plaintiff. Arakhita Jena had applied to the General Administration Department, Government of Orissa to accord permission for alienation of the land. He died in the year 1974. After his death, his widow Naba Bewa-defendant no.1 had applied to the Government for necessary permission on 29.10.1980, 11.10.1984 and on the subsequent dates. She obtained the legal heir certificate from the Tahasildar, Bhubaneswar, Ext.6. Defendant no.1 and her major sons had filed an affidavit before the G.A Department to accord permission. On 26.12.1986, the G.A Department had accorded permission for alienation of the land, Ext.10. The recital of Ext.1 shows that Arakhita Jena had taken the responsibility to obtain permission before execution of the sale deed in favour of the plaintiff. Thus the delay cannot be attributed to the plaintiff. After permission was accorded, plaintiff approached the defendants for execution of the deed in his favour. There was no latches on the part of the plaintiff in obtaining the permission. Plaintiff was/is ready and willing to perform his part of the contract. Unsuccessful defendants 1 to 6 filed RFA No.2/17 of 2003 before the learned Addl. District Judge, Bhubaneswar, which was eventually dismissed. 5. The second appeal was admitted on 6.4.2007 on the following substantial question of law; "1. Plaintiff was/is ready and willing to perform his part of the contract. Unsuccessful defendants 1 to 6 filed RFA No.2/17 of 2003 before the learned Addl. District Judge, Bhubaneswar, which was eventually dismissed. 5. The second appeal was admitted on 6.4.2007 on the following substantial question of law; "1. Whether the observation of the learned 1st appellate court that the plaintiff/respondent was willing to perform his part of the contract is legally sustainable after observing that the plaintiff-respondent remained silent for 17 years and did not take any step for execution of the sale deed ?" In course of hearing, the following substantial questions of law were formulated on 5.9.2019. "2. Whether the courts below are justified in decreeing the suit for specific performance of contract when the agreement to sale the land, Ext.1 was entered into between the parties on 29.8.1970, Ext.1 and the suit was instituted after lapse of 16 years, i.e. on 25.02.1987 ? 3. Whether the courts below are justified in decreeing the suit in view of the specific clause in the agreement "If there will be any type of obstruction in the enjoyment of this property, the 2nd party is entitled to recover the advance money of Rs.2300/- from the 1st party along with interest @ 12% and cost of litigation in the competent court by auctioning the un-enjoyed property and in case of further insufficiency the same may be realized from my other properties ?" 6. Heard Mr. R.K. Mohanty, learned Senior Advocate for the appellants and Mr. U.K. Nanda, learned counsel for respondent no.1. 7. Mr. Mohanty, learned counsel for the appellants submitted that Arakhita Jena died in the year 1974. Plaintiff did not take any step to obtain permission for alienation of the suit land from the Government. Legal heirs of Arakhita Jena had applied for permission in the year 1980. Permission was accorded in the year 1986. Thereafter, plaintiff issued notice, Ext.11, to perform his part of contract in the year 1987 without any positive proof that the notice was issued. Plaintiff failed to prove that he was continuously ready and willing to perform his part of the contract to pay the balance consideration amount between the date of contract and the hearing of the suit. Thereafter, plaintiff issued notice, Ext.11, to perform his part of contract in the year 1987 without any positive proof that the notice was issued. Plaintiff failed to prove that he was continuously ready and willing to perform his part of the contract to pay the balance consideration amount between the date of contract and the hearing of the suit. Learned appellate court having come to a categorical conclusion that "for long 17 years plaintiff has not taken any step to get the sale deed executed nor issued any letter to the defendant showing his readiness and willingness for the transaction. In para-9 and 10 of the evidence, plaintiff has admitted the fact of his silence with regard to his readiness and willingness", committed a manifest illegality in decreeing the suit. He further submitted that the agreement, Ext.1, stipulates that if there will be any type of obstruction in the enjoyment of the property, the 2nd party is entitled to recover the advance money of Rs.2300/- from the 1st party along with interest @ 12% and cost of litigation in the competent court by auctioning the unenjoyed property and in case of further insufficiency the same may be realised from the other properties. There was inordinate delay of 17 years. Thus the plaintiff is entitled to the money paid in advance with interest. To buttress the submission, he placed reliance on the decisions in the case of K.S. Vidyanadam v. Vairavan, (1997) AIR SC 1751, Nair Service Society, Changanacherry v. R.M. Palat, (1966) AIR Kerala 311 and Durjyodhan Palei v. Padana Charan Das, (1978) AIR Orissa 5. 8. Per contra, Mr. Nanda, learned counsel for the respondent no.1 submitted that the plaintiff was/is ready and willing to perform his part of contract. Delay cannot be attributed to the plaintiff. Both the courts concurrently held that the plaintiff was ready and willing to perform part of the contract. He placed reliance on the decision of the apex Court in the case of Maniar Ismail Sab v. Maniar Fakruddin, (1989) AIR SC 1509. 9. In Smt. Chand Rani v. Smt. Kamal Rani, (1993) AIR SC 1742, the question arose before the Constitution Bench of the apex Court whether time was the essence of the contract ? The apex Court held that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. 9. In Smt. Chand Rani v. Smt. Kamal Rani, (1993) AIR SC 1742, the question arose before the Constitution Bench of the apex Court whether time was the essence of the contract ? The apex Court held that 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 from the express terms of the contract; from the nature of the property and from the surrounding circumstance, for example: the object of making the contract. 10. Article 54 of the Limitation Act prescribes the period of limitation for filing the suit for specific performance of contract. "54. For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused." 11. On a bare reading of Article 54 of the Limitation Act, it is evident that if the date is fixed for performance of the agreement, then non-compliance of the agreement on the date would give a cause of action to file the suit for specific performance within three years from the date so fixed. When no such date is fixed, limitation of three years to file a suit for specific performance would begin wh6en the plaintiff has noticed that the defendant has refused the performance of the agreement. 12. Admittedly, the case at hand does not fall in the first category of Article 54 of the Limitation Act, since no date was fixed in the agreement for its performance. The case would be governed by the second category i.e. when the plaintiff has a notice that performance is refused. 13. In Veerayee Ammal v. Seeni Ammal, (2001) AIR SC 2920, the apex Court held : "12. In K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1 this Court held: "Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property." 13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to ideosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit. In Law Lexicon it is defined to mean "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstance will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea." 14. In Motilal Jain v. Smt. Ramdasi Devi, (2000) AIR SC 2408, the apex Court held that it may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property; (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. The apex Court further held that merely because the plaintiff claims damages in a suit for specific performance of contract as alternative relief, it cannot be said that he is not entitled to the main relief of specific performance of contract. 15. The apex Court further held that merely because the plaintiff claims damages in a suit for specific performance of contract as alternative relief, it cannot be said that he is not entitled to the main relief of specific performance of contract. 15. 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 there was certain obligation to be performed by the predecessor of the defendants who entered into an agreement to sell the land to the plaintiff. The agreement stipulates that balance consideration amount of Rs.500/- shall be paid to Arakhita Jena after obtaining necessary permission from the Government of Orissa for transfer of the land. Arakhita Jena filed an application on 27.12.1970. He expired in the year 1974. Plaintiff approached the defendants to make the application with the Government afresh. After obtaining legal heir certificate, defendant no.1 filed an application before the Government. There were several correspondences between the Government and the defendant nos.2 and 3 to comply with the necessary requirements. Government accorded permission on 25.12.1986. Plaintiff sent a notice on 9.1.1987 to the defendants to receive the balance consideration amount and execute the sale deed. Thus delay cannot be attributed to the plaintiff. Defendants 1 to 6 acted as catalyst in causing delay. Both the courts concurrently held that the plaintiff was/is ready and willing to perform part of the contract. There is no perversity in the said finding. 16. The submission of Mr. Mohanty, learned Senior Advocate for the appellant that the learned appellate court rendered a finding that "Therefore, for long 17 years plaintiff has not taken any steps to get the sale deed executed nor issued any letter to the defendants-appellants showing his readiness and willingness for the transaction. At paragraphs 9 and 10 of his evidence plaintiff has admitted this fact of his silence as regards his readiness and willingness" is not correct. Para-5 of the judgment of the appellate court is a long paragraph consisting of four pages. Four sentences above would show that the counsel for the appellant advanced the submission. Thus the same is not the finding. Rather on taking a holistic view of the matter, learned appellate court held that the plaintiff was/is ready and willing to perform his part of the contract. Four sentences above would show that the counsel for the appellant advanced the submission. Thus the same is not the finding. Rather on taking a holistic view of the matter, learned appellate court held that the plaintiff was/is ready and willing to perform his part of the contract. The agreement stipulates that if there will be any type of obstruction in the enjoyment of this property, the 2nd party would be entitled to recover the advance money of Rs.2300/- from the 1st party along with interest @ 12% and cost of litigation in the court by auctioning the un-enjoyed property. The plaintiff is in possession of the property from the date of agreement. There was no obstruction for enjoyment of the property. The substantial questions of law are answered accordingly. 17. The scope of Sec. 100 CPC is well known. In Maniar Ismail Sab, the apex Court delineated the scope of Sec.100 CPC. 18. In K.S. Vidyanadam, there was a total inaction on the part of the purchaser for two and half years in violation of terms of agreement. The apex Court held that it would be inequitable to give the relief of specific performance of the contract. As held above, defendants acted as catalyst in causing delay. 19. Nair Service Society, Changanacherry is distinguishable on facts. 20. In Durjyodhan Palei, taking a cue from the decision of the apex Court in the case of Gomathinayagam Pillai v. Palaniswami Nadar, (1967) AIR SC 868, this Court held that the suit for specific performance of contract of sale of land, the plaintiff must plead and 10 prove that he was continuously ready and willing to perform his part of the contract. There is no quarrel over the proposition of law. In the instant case the plaintiff was/is ready and willing to perform his part of the contract. 21. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.