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2022 DIGILAW 136 (TS)

Mohammed Naimuddin v. Mohammed Sajid

2022-03-04

A.VENKATESHWARA REDDY

body2022
ORDER : This Civil Revision Petition is filed by the petitioner/defendant assailing the orders dated 26.07.2019 in I.A.No.708 of 2018 in O.S.No.131 of 2016, on the file of the learned Judge, Family Court-cum-VII Additional District Judge, Sangareddy. 2. This application in I.A.No.708 of 2018 was filed by the defendant under Order XII Rule 6 read with Section 151 of Civil Procedure Code (for short, CPC) to dismiss the main suit and also to grant exemplary costs under Section 35-A of C.P.C. on the ground that though defendant is always ready and willing to perform his part of contract, plaintiff was not ready and not willing to perform his part of contract, having given an undertaking to pay the balance sale consideration, failed to deposit the same. Thus, the suit of the plaintiff is liable to be dismissed by awarding exemplary costs. 3. Heard both sides. For the sake of convenience, the parties hereinafter referred as plaintiff and defendant as arrayed in the original suit. 4. The plaintiff has filed the original suit for specific performance of suit agreement of sale dated 06.06.2016, wherein and where under, it is mentioned that the plaintiff has agreed to purchase the suit schedule property for a valid consideration of Rs.76,23,000/- and paid an advance amount of Rs.21,50,000/- agreeing to pay the balance sale consideration on or before 02.08.2016 and to get the sale deed executed in his favour. In that suit, the defendant has filed a written statement, issues are settled. As per the material available on record and as per the pleadings in the plaint and written statement, it is found that the plaintiff has agreed to pay the balance sale consideration of Rs.54,73,000/- on or before 02.08.2016 and to get the registered sale deed executed, but the plaintiff has failed to deposit the balance sale consideration before the Court. Initially, the plaintiff has filed I.A.No.707/2017 to send the said agreement of sale to the Registration office for impounding with required stamp duty and penalty. 5. Earlier, the plaintiff having filed I.A.No.628 of 2017 to deposit the balance sale consideration before the Court, failed to deposit the said amount. The plaintiff has also filed I.A.No.653 of 2016 for grant of ad-interim injunction restraining the defendants for alienating the suit schedule property to the third parties. Later, when the plaintiff failed to show any interest, that application was closed. The plaintiff has also filed I.A.No.653 of 2016 for grant of ad-interim injunction restraining the defendants for alienating the suit schedule property to the third parties. Later, when the plaintiff failed to show any interest, that application was closed. Thereafter, plaintiff has filed I.A.No.618 of 2017 to reopen I.A.No.653 of 2016 and to pass orders on merits. While I.A.No.618 of 2017 was pending, plaintiff filed another I.A.No.628 of 2017 to advance I.A.No.618 of 2017. During pendency of I.A.No.628 of 2017, plaintiff gave an oral undertaking to deposit the balance sale consideration on or before 07.09.2017, but he could not deposit the same. Later, I.A.No.628 of 2017 was dismissed as infructuous. I.A.No.618 of 2017 was also dismissed. Thereafter, the plaintiff has filed a memo on 25.04.2019 to permit him to deposit the balance sale consideration. The defendant has opposed the said memo dated 25.04.2019 and filed the present application in I.A.No.708 of 2018 under Order XII Rule 6 read with Section 151 of C.P.C. to dismiss the original suit in O.S.No.131 of 2016 with exemplary costs as the plaintiff has failed to deposit the balance sale consideration. 6. This application filed in I.A.No.708 of 2018 was dismissed by the Court below with an observation that if the defendant has expressed his intention to execute sale deed after receipt of balance sale consideration amount, while the plaintiff is not ready and willing to deposit the balance sale consideration, then only the dismissal of the suit would arise. The plaintiff has been expressing his intention to deposit the sale consideration amount, whereas the defendant did not file any memo to the effect that he is ready and willing to take balance sale consideration and to execute sale deed. Without such undertaking and without expression to execute sale deed in case of respondent/plaintiff depositing the balance sale consideration amount and without deciding the issue already settled, the suit cannot be dismissed under Order XII Rule 6 of C.P.C. 7. Heard both sides. 8. For the sake of convenience, the parties are referred as plaintiff and defendant as arrayed in the original suit. 9. The learned counsel for the defendant seeks to submit that in a suit for specific performance, it is the responsibility of the plaintiff to plead and establish that he is ever ready and willing to perform his part of contract. For the sake of convenience, the parties are referred as plaintiff and defendant as arrayed in the original suit. 9. The learned counsel for the defendant seeks to submit that in a suit for specific performance, it is the responsibility of the plaintiff to plead and establish that he is ever ready and willing to perform his part of contract. But, in the case on hand, after filing of the suit, from time to time, the plaintiff, having obtained permission from the Court to deposit the balance sale consideration, failed to do the same. Hence, the plaintiff is not entitled for specific performance of suit agreement of sale and that the suit is liable to be dismissed under Order XII Rule 6 of C.P.C. 10. The learned counsel for the defendant also relied on the principles laid by the Hon’ble Supreme Court in the case of Charanjit Lal Mehra and Ors. Vs.Smt.Kamal Saroj Mahajan and Anr., 2005 (11) SCC at page No.279. In that case, in a Rent Control matter under Delhi Rent Control Act, an application was filed under Order XII Rule 6 C.P.C by the plaintiff for passing a judgment on admissions made by the defendant in the pleadings. The Hon’ble Supreme Court while dealing with the facts of that case, held that Order XII Rule 6 C.P.C is enacted for the purpose of and in order to expedite the trials, if there is any admission on behalf of the defendant or an admission can be inferred from the facts and circumstances of the case without any dispute; then in such a case, in order to expedite and dispose of the matter, such admission can be acted upon. 11. Per contra, learned counsel for the plaintiff seeks to submit that the plaintiff is ever willing to perform his part of contract. Due to financial constraints, the plaintiff could not deposit the said amount, he has filed memo stating that he is willing to deposit the balance sale consideration during the trial and that the provisions of Order XII Rule 6 C.P.C. are not applicable to the facts of the present case. He relied on the principles laid under the following decisions:- HIMANI ALOYS LIMITED VS. TATA STEEL LIMITED, (2011) 15 SCC at page No.273 & Hari Steel and General Industries Ltd. and Anr. v.Daljit Singh and Ors., AIR 2019 SCC at page 4796 12. He relied on the principles laid under the following decisions:- HIMANI ALOYS LIMITED VS. TATA STEEL LIMITED, (2011) 15 SCC at page No.273 & Hari Steel and General Industries Ltd. and Anr. v.Daljit Singh and Ors., AIR 2019 SCC at page 4796 12. In Himani Aloys Limited (2nd supra), the Hon’ble Supreme Court while dealing with the nature and scope of admissions under Order XII Rule 6 of C.P.C., held that it is an enabling provision, it is neither mandatory nor peremptory, but discretionary. The Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that the judgment on admissions is a judgment without trial which permanently denies any remedy to the defendant and therefore, unless the admission is clear, unambiguous and unconditional, such discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. 13. Whereas, in the case of Hari Steel and General Industries Limited (3rd supra), the Hon’ble Supreme Court again dealing with the scope of Order XII Rule 6 C.P.C. in a suit for specific performance of contract, held that mere admission of entering into an agreement cannot be termed as categorical and unconditional admission for delivering a judgment on such admissions and when trial had already commenced, considering the serious factual disputes and defence of the defendant in the suit, it is not permissible for making roving inquiry for disposal of the application. 14. In the case on hand, the plaintiff has filed the original suit for specific performance of suit agreement of sale dated 06.06.2016. He has paid an amount of Rs.21,50,000/- out of the total sale consideration of Rs.76,23,000/-. As per the order impugned, he was making attempts from time to time either by filing applications or memos before the trial Court to deposit the balance sale consideration of Rs.54,73,000/-, but failed to deposit the same, finally, he has filed I.A.Nos.302 and 303 of 2019 for extension of time and such applications were pending. 15. As per Section 16(c) of Specific Relief Act, in a suit for specific performance of agreement of sale, it is not mandatory that the plaintiff has to deposit the balance sale consideration. 15. As per Section 16(c) of Specific Relief Act, in a suit for specific performance of agreement of sale, it is not mandatory that the plaintiff has to deposit the balance sale consideration. It is sufficient if he is able to establish that he is ever willing to perform his part of contract and that he is willing to deposit the balance sale consideration. 16. In the present case, the conduct of the plaintiff shows that from time to time, he has been making applications one after the other to deposit the balance sale consideration of Rs.54,73,000/-, which is a huge amount, but failed to deposit within the specified time, finally, filed a memo on 25.04.2019 to permit him to deposit the balance sale consideration which was opposed by the defendant. Thereafter, he has filed Interlocutory Applications which were not considered by the trial Court. Aggrieved by the same, the plaintiff has filed C.R.P.410 of 2020 which is pending on the file of this Court. 17. In the original suit, undisputedly, the trial is in progress. PW1 is examined. There are serious factual disputes, more particularly, in view of the defence set-up by the defendant. Though plaintiff has failed to deposit the balance sale consideration before the trial Court, the defendant did not come forward stating that he is ready and willing to take the balance sale consideration amount and to execute the sale deed. In the absence of such undertaking and without clear unambiguous admission or expression on behalf of defendant to execute sale deed in case the plaintiff deposits the balance sale consideration amount, without deciding the issues settled at this pre-trial stage at the instance of the defendant, the suit cannot be dismissed under Order XII Rule 6 of C.P.C. 18. When the facts of the present case are tested on the touch stone of principles laid by the Hon’ble Supreme Court in the above decisions, the answer is in the negative. When the facts of the present case are tested on the touch stone of principles laid by the Hon’ble Supreme Court in the above decisions, the answer is in the negative. As the trial has already commenced, evidence of PW1 is recorded, there is no specific, clear, unambiguous admission on the part of the defendant that he is ready and willing to execute the sale deed immediately on receipt of balance sale consideration from the plaintiff, the suit cannot be decided or dismissed at the instance of the defendant under Order XII Rule 6 of C.P.C. More so, as the evidence of plaintiff is in progress in the original suit, it is not required or permissible to make a roving inquiry for disposal of such application filed by the defendant under Order XII Rule 6 of C.P.C. 19. Viewed from that perspective, in the facts and circumstances of the case, considering the conduct of the parties and pleadings on record, stage of the suit, I do not find any jurisdictional error or infirmity in the order impugned and it is sustained. 20. In the result, the Civil Revision Petition is dismissed confirming the orders dated 26.07.2019 in I.A.No.708 of 2018. However, considering the fact that the original suit is filed in the year 2016 and the evidence of the plaintiffs is in progress, the trial Court shall make every endeavour for disposal of the original suit itself within a period of nine (9) months from the date of receipt of the copy of order. In the circumstances of the case, there shall be no order as to costs. 21. As a sequel, Interlocutory Applications, if any pending, shall stand closed.