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2020 DIGILAW 402 (JHR)

Shashi Kumar Babuna v. Mahendra Kumar Agarwal

2020-02-28

H.C.MISHRA

body2020
JUDGMENT 1. Heard learned counsel for the petitioners judgment-debtors and learned counsel for the opposite party decree-holder. 2. The petitioners are aggrieved by the impugned order dated 24.06.2013, passed by the learned Civil Judge (Senior Division)-II, Dhanbad, in Execution Case No.2 of 2009, whereby the application dated 4.01.2012 filed by the judgment-debtor for rescinding the contract, was rejected and the decree-holder was directed to deposit the balance amount of the consideration in favour of the judgment-debtor, for execution of the contract, so that the compromise decree be executed. 3. The facts of the case lie in a short compass. The parties entered into an agreement on 18.04.2005, for sale of the suit property, i.e., house with 30 kathas of land situated in Dhanbad, fully discribed in Schedule-A to the plaint, by the defendants petitioners to the plaintiff respondent. As the said agreement could not be followed, the suit for specific performance of the contract was filed by the opposite party herein. The said suit was compromised between the plaintiff and the defendants on 11.11.2008, pursuant to which the compromise decree was passed. The relevant portions of the compromise, as detailed in paragraph 3 of the compromise petition, are quoted herein below:- ''(i) In the original agreement dated 18.04.05 for specific performance of which the present suit has been filed, defendant No.1 had agreed to sell 30 kathas out of 33 Kathas land described in the Schedule A of the plaint but now it has been agreed that defendant No.1 will sell the remaining 3 kathas of Schedule A to the plaintiff or his nominee/nominees for the consideration of Rs.17,50,000/- (Rupees Seventeen Lac Fifty Thousand only) to be paid along with the balance consideration payable under original agreement dated 18.04.2005. (ii) the balance consideration payable under original agreement dated 18.04.05 was Rs.71,39,000/-, which was payable within three months from the date of the agreement i.e. within 18.07.2005. In order to compensate for the losses suffered by defendant No.1 owing to delayed payment of balance consideration, the plaintiff shall pay defendant No.1 or 3 simple interest @ 9% per annum on the balance consideration of Rs.71,39,000/- w.e.f. 19.08.05 till the date of payment of the said balance consideration. In order to compensate for the losses suffered by defendant No.1 owing to delayed payment of balance consideration, the plaintiff shall pay defendant No.1 or 3 simple interest @ 9% per annum on the balance consideration of Rs.71,39,000/- w.e.f. 19.08.05 till the date of payment of the said balance consideration. (iii) It is further agreed between the parties hereto that plaintiff shall pay the balance consideration of Rs.71,39,000/- with interest thereon for the period as stipulated above and at the same time pay Rs.17,50,000/- for the 3 Kathas of land which was not agreed to be sold in the original agreement but now agreed to be sold hereby within 90 days of execution of this compromise petition. (iv) Thus it is agreed between the parties hereto that entire amount payable by the plaintiff to defendant No.1 either through her attorney or to her shall be payable by the plaintiff within 90 days from the date of execution of this compromise petition and on receipt of said sum defendant No.1 through defendant No.3 shall execute sale deed/deeds in favour of plaintiff or his nominee/nominees to transfer entire 33 Kathas land described in Schedule A of the plaint of this suit to the plaintiff or his nominee. (v) It is further agreed between the parties hereto that on payment of Rs.17,50,000/- for the remaining 3 Kathas of land and balance consideration of Rs.71,39,000/- with interest thereon as provided herein before to the defendant No.l through defendant No.3, the later will deliver the possession of entire Schedule A to the plaintiff or his nominee/nominees. (vi) It is further agreed that time is the essence of the compromise. The plaintiff must pay the above stated full amount of Rs.71,39,000/- with interest @ 9% with effect from 19.08.2005 till the date of payment + Rs.17,50,000/- for the three Kathas of land as agreed within the stipulated time period in this compromise i.e. within 90 days from the date of execution of this compromise petition. If the plaintiff does not pay the agreed amount in time, then the entire sale agreement shall be deemed to have been cancelled and the defendants shall return the advance amount received Rs11,11,000/- to the plaintiff within 15 days. Thereafter the defendants shall be free to sale the said property under this litigation to any third party as and when they so desire. Thereafter the defendants shall be free to sale the said property under this litigation to any third party as and when they so desire. The plaintiff shall have no claim on this property or against the defendants. (vii) Defendant No.1 and defendant No.3 undertake that they will provide every assistance in execution and registration of sale deed and if any legal impediment arises in course of and regarding registration of sale deed in respect of Schedule A, Defendants No.1 and 3 will get rid of such impediment at their own cost. (viii) Defendant No.1 through defendant No.3 shall hand over original documents of title and revenue records (Sale deed, mutation order, up to date rent receipts showing payment of ground rent) of the suit land to the plaintiff at the time of receipt of total consideration stipulated above. *** *** *** ." 4. In spite of the aforesaid terms of compromise, which formed the part of the compromise decree, the same was not given effect to, and a letter was written by the petitioners herein on 23.01.2009, which has been brought on record as Annexure-3 to the application. In the said letter, it was stated that the petitioner had not received any information or massage from the opposite party about the payment. The opposite party was intimated that the petitioner was coming to Dhanbad on 9 th February 2009 in the morning, and he was requested to make payment of the full balance amount + interest up to 9 th February 2009 through Banker''s cheque payable at Dhanbad. The said letter was replied by the opposite party to the petitioner, by letter dated 31 st January 2009 as contained in Annexure-4 to this petition, wherein it was stated that in fact, the petitioners were not complying their part of terms of compromise, as the petitioners were in obligation to furnish up to date rent receipts and documents of mutation of the suit land, and they were not in a position to furnish the same, as the rents were not paid for long. By the said letter, the petitioner was asked to furnish the relevant documents and it was stated that if the relevant documents are not furnished, the execution case would be filed. By the said letter, the petitioner was asked to furnish the relevant documents and it was stated that if the relevant documents are not furnished, the execution case would be filed. Thereafter, the execution case was filed in the Court below, in which, pursuant to the order dated 27.02.3013, passed by this court in Civil Revision No.9 of 2012, the detailed order has been passed by the Execution Court on 24.06.2013. The Execution Court took note of the facts of the compromise between the parties and has framed four issues for determination, which are as follows:- (I) Whether the petition filed on behalf of Judgment debtor U/S 28(1) of Specific Relief Act is maintainable during execution proceeding and further this court is empowered to decide the same or not? (II) Whether the conditions mentioned in clause 3 (viii) of compromise petition which is part of decree passed in T.S. No.-98/05 was condition precedent for payment of balance and consideration by decree holder or not? (III) Whether the decree holder was ready and willing to execute his part of agreement and judgment debtor failed to comply the conditions mentioned in clause 3(viii) of compromise petition which resulted in non-furnishing of documents relating to mutation to the decree holder or not? (IV) Whether the agreement to sale dated 18.04.2005 and compromise petition dated 11.11.2008 are liable to be rescinded or not? 5. On the basis of the materials on record, all the issues were decided in favour of the decree-holder and against the judgment-debtor. As regards the issue No.(II), which was with respect to the condition in Clause 3(viii) of the compromise petition, it has been held by the Execution Court that on the basis of the materials on record, the conditions mentioned in Clause 3(viii) of the compromise petition was a condition precedent for payment of the balance consideration of the decree-holder. As it was agreed between the parties, that at the time of payment of the total consideration, the judgment-debtor had to hand over the document relating to the mutation, rent receipts etc., to the decree holder. As such handing over all these revenue documents was a condition precedent and pursuant thereto only, the payment of the balance consideration was to be made by the decree-holder and the contract had to be performed simultaneously. 6. As such handing over all these revenue documents was a condition precedent and pursuant thereto only, the payment of the balance consideration was to be made by the decree-holder and the contract had to be performed simultaneously. 6. As regards Issue No.(III), whether the decree-holder was ready and willing to execute his part of agreement and the judgment-debtor failed to comply the conditions mentioned in Clause 3(viii) was concerned, the Court below has given a finding that the decree-holder has been able to establish the factum of his readiness and willingness by making several correspondences to the judgment-debtor, showing his intention to pay the balance consideration upon handing over the documents relating to the mutation and the rent receipts. The cheques were also deposited in the Court at the time of filing of the execution petition, which showed that from very beginning, the judgment-debtor was willing to perform his part of the contract. Accordingly, this issue was also decided in favour of the decree-holder, and against the judgment-debtor, holding that the decree-holder was ready and willing to execute his part of the agreement, but due to non-compliance of the condition mentioned in Clause 3(viii) of the compromise petition, which also became part of decree, the agreement between the parties could not be executed. 7. The remaining issues have also been decided in favour of the decree-holder and against the judgment-debtor, holding that it is not a case, in which, the contract was liable to be rescinded. Accordingly, both the parties were directed to perform their part of the contract. 8. Learned senior counsel appearing for the petitioner judgment-debtor has drawn the attention of the Court towards the order sheet of the Execution Court, to show that the execution petition was filed on 7.02.2009, without filing the certified copy of the Decree, which was made available only on 16.12.2009. It is submitted by learned senior counsel for the petitioner that by that time, all the cheques deposited by the decree-holder had already expired, and on this basis, it is submitted that the decree-holder was not actually intending to perform his part of the contract, and actually he was never in readiness to perform his part of the contract. It is submitted by learned senior counsel for the petitioner that by that time, all the cheques deposited by the decree-holder had already expired, and on this basis, it is submitted that the decree-holder was not actually intending to perform his part of the contract, and actually he was never in readiness to perform his part of the contract. Learned senior counsel has also drawn my attention towards the compromise agreement between the parties, in support of his contention that handing over the documents was never the condition precedent for making the payment of balance consideration by the decree holder. Learned senior counsel has placed reliance upon an unreported decision of the Honble Apex Court in C.S. Venkatesh Vs. A.S.C. Murthy (D) by LRS. & Ors., (Civil Appeal No.8425 of 2009 decided on 07.02.2020), wherein it has been held that the plaintiffs continuous readiness and willingness to perform his part of the contract is a condition precedent to grant the relief of performance of contract, under Section 16(c) of the Specific Reliefs Act . In this case, the law has been laid down by the Apex Court in following terms:- ''15. The words ready and willing imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstance whether the plaintiff was ready and was always ready to perform his contract.'' 9. On the same proposition, learned senior counsel has also place reliance upon another unreported decision of the Honble Apex Court in Atma Ram Vs. The court may infer from the facts and circumstance whether the plaintiff was ready and was always ready to perform his contract.'' 9. On the same proposition, learned senior counsel has also place reliance upon another unreported decision of the Honble Apex Court in Atma Ram Vs. Charanjit Singh (SLP (C) No.27598 of 2016 , decided on 10.02.2020). 10. Learned senior counsel, thus, concluded that though the decree-holder had filed the execution case on 7.02.2009, but the fact that he had filed the execution case without the certified copy of the Decree, which was made available to the Court below only on 16.12.2009, by which time, the cheques deposited by the decree-holder had already expired, clearly shows unwillingness on the part of the decree-holder to perform his part of the contract. Learned senior counsel accordingly, submitted that the impugned order passed by the Execution Court cannot be sustained in the eyes of law. 11. Learned counsel for the opposite party on the other hand has opposed the prayer, and submitted that all the issues have been rightly decided by the Execution Court below, and there is no illegality in the impugned order. It is submitted by learned counsel that it was the judgment-debtor, who was not in a position to perform his part of the contract, as he was not in a position to deliver the land revenue documents and even the mutation order, so that the registration of the suit property could be carried out. It is submitted by learned counsel that till the date, the execution case was filed, these documents were not available with the petitioner and the rents were not paid for a long time. On the other hand, the plaintiff decree-holder was always ready to perform his part of contract and at the time of filing the execution case, also deposited the cheques in the Court. Learned counsel has pointed out that since the documents of the land revenue were not deposited by the defendant decree holder, the contract could not be executed. It is the specific case of the learned counsel for the petitioner that as on today also, if the documents are handed over to the plaintiff, the entire consideration amount shall be paid by the petitioner without any delay. 12. It is the specific case of the learned counsel for the petitioner that as on today also, if the documents are handed over to the plaintiff, the entire consideration amount shall be paid by the petitioner without any delay. 12. Upon query by this Court, learned counsel for the petitioner has very fairly conceded that on the date of filing the execution case, the revenue records were not available and the rent of the land was not up to date. Even the mutation was not done by that date. Learned counsel for the petitioners submits that all these documents are now ready. 13. In that view of the matter, I find that there is no illegality in the findings given by the Execution Court on issue Nos. (II) and (III) aforesaid. Handing over the documents relating to the mutation, rent receipts etc., to the decree-holder was a condition precedent for making the payment of the balance consideration money and the decree-holder was always ready and willing to execute his part of the contract, and had also deposited the cheques in the Court, but due to noncompliance of the condition in Clause 3(viii) of the compromise petition, the contract between the parties could not be executed. 14. This being the position, I do not find any illegality in the impugned order dated 24.6.2013, passed by the learned Civil Judge (Senior Division)-II, Dhanbad, worth any interference in the revisional jurisdiction. 15. There is no merit in this revision and the same is accordingly, dismissed. The pending interlocutory application also stand disposed of.