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2022 DIGILAW 1672 (ALL)

Mukesh Kumar Jain v. Ajay Pal Singh

2022-10-17

SALIL KUMAR RAI

body2022
JUDGMENT : Salil Kumar Rai, J. This is a plaintiffs' second appeal challenging the judgment and decree dated 10.10.2006 passed by the Additional District Judge, Court No. 10, Meerut in Civil Appeal No. 71 of 2006 which arose out of the judgment and decree dated 29.3.2006 passed by the Additional Civil Judge (Senior Division), Court No. 6, Meerut in Original Suit No. 49 of 1998. 2. The suit properties in Original Suit No. 49 of 1998 are House Nos. 296 and 298 Indira Nagar, Delhi Road, Meerut. The previous numbers of the suit properties were House Nos. 334/3 and 334/6, which were subsequently renumbered as House Nos. 158Kha and 159Ka. 3. The facts of the case are that the defendant No. 1, Ajay Pal Singh, was the owner of the suit property. On 6.10.1997 the defendant No. 1 executed an agreement to sale regarding the suit property in favour of the plaintiffs. The sale consideration agreed in the agreement to sale was Rs. 3,50,000/-. Rs. 50,000/- was paid as earnest money by the plaintiffs to the defendant No. 1. The sale-deed was to be executed by 27.12.1997 on payment of balance amount. The agreement further provided that the stamp duty payable on the sale-deed and the registration charges shall be shared equally by the vendor and the vendee, i.e., the plaintiffs and defendant No. 1. 4. It is the case of the plaintiffs that on 17.12.1997 they purchased the stamps payable on the sale-deed and on 20.12.1997 purchased two bank drafts of Rs. 1,50,000/- each for payment of the balance amount to defendant No. 1. On 20.12.1997, the plaintiffs sent telegram and a fax message to the defendant No. 1 asking him to be present in the office of the Sub-Registrar, Meerut on 23.12.1997 for execution of the sale-deed. The defendant No. 1 did not appear in the office of the Sub-Registrar on 23.12.1997 though the plaintiffs were present and also got their presence recorded by the Sub-Registrar. Subsequently, the plaintiffs again sent telegrams to the defendant No. 1 on 24.12.1997 and 25.12.1997 asking him to be present in the office of the Sub-Registrar on 27.12.1997 to execute the sale-deed. However, the defendant No. 1 did not appear in the office of the Sub-Registrar on 27.12.1997 though the plaintiffs were present on the said date and also got their presence recorded by the Sub-Registrar. However, the defendant No. 1 did not appear in the office of the Sub-Registrar on 27.12.1997 though the plaintiffs were present on the said date and also got their presence recorded by the Sub-Registrar. On 2.1.1998 the plaintiffs sent another telegram to the defendant No. 1 seeking his presence in the office of the Sub-Registrar, Meerut on 10.1.1998 for execution of sale-deed, but as 10.1.1998 was a holiday, another telegram dated 5.1.1998 was sent to the defendant No. 1 seeking his presence before the Sub-Registrar on 12.1.1998 for execution of the sale-deed. In the meantime the defendant No. 1 executed sale-deed dated 31.12.1997 transferring the suit property in favour of defendant No. 2 and sent a notice dated 28.12.1997 cancelling the agreement to sale dated 6.10.1997. The notice dated 28.12.1997 was dispatched at the address of the plaintiffs on 2.1.1998. It is also the case of the plaintiffs that at the time of the agreement dated 6.10.1997 one Praveen Kumar Jain was in possession of the suit property and after the agreement the defendant No. 1 alongwith the plaintiffs instituted different suits for eviction of Praveen Kumar Jain from the suit property. The defendant No. 2 is the brother-in-law of Praveen Kumar Jain and both are partners in a Firm named as Birla Aircon. 5. On the aforesaid averments, the plaintiffs instituted Original Suit No. 49 of 1998 for specific performance of contract pleading that they were always ready and willing to perform the terms of contract and to get the sale-deed executed in their favour on the basis of the agreement dated 6.10.1997. Additionally, the plaintiffs also claimed a decree awarding Rs. 5,000/- for the loss suffered due to return of stamps and further for damages at the rate of Rs. 15/- per day for wrongful occupation of the suit property by defendant No. 1. 6. The defendants contested the aforesaid suit No. 49 of 1998 and filed their written statements. The defendant No. 1 admitted the agreement to sale and also the payment of Rs. 50,000/- as earnest money. In his written statement, the defendant No. 1 stated that he had agreed to sell the suit property because he required money by 31.12.1997. The defendant No. 1 denied that the plaintiffs were always ready and willing to perform the terms of contract and stated that the plaintiffs never intended to perform the terms of the contract. In his written statement, the defendant No. 1 stated that he had agreed to sell the suit property because he required money by 31.12.1997. The defendant No. 1 denied that the plaintiffs were always ready and willing to perform the terms of contract and stated that the plaintiffs never intended to perform the terms of the contract. It is the case of defendant No. 1 that under the agreement to sale the balance amount had to be paid in cash and the plaintiffs had never tendered the balance amount in cash. The case of defendant No. 1 was that the bank drafts and the stamps purchased by the plaintiffs were only paper works in the nature of Peshbandi. In his written statement, the defendant No. 1 also averred that he was present in the office of the Sub-Registrar, Meerut on 23.12.1997 and 27.12.1997, but the plaintiffs did not appear on the said dates in the office the Sub-Registrar. It has been averred by defendant No. 1 that time was the essence of contract in the agreement dated 6.10.1997 and as the plaintiffs failed to pay the balance amount and get the sale-deed executed by 27.12.1997, therefore, the defendant No. 1 rightly cancelled the agreement and forfeited the earnest money and executed the sale-deed dated 31.12.1997. 7. The defendant No. 2 also filed his written statement alleging that he had no notice of the agreement dated 6.10.1997 and was therefore a bona fide purchaser of the suit property for valuable consideration without notice. It was also the case of defendant No. 2 that he got the sale-deed dated 31.12.1997 executed on legal advice given by his lawyer that after 27.12.1997, there was no bar on execution of sale-deed in his favour. It was also the case of defendant No. 2 that the suit property had been mortgaged in favour of Oriental Bank of Commerce therefore no sale-deed of the aforesaid property can be executed. 8. The plaintiffs filed their replica in which they denied the plea of defendant No. 2 that he was a bona fide purchaser of the suit property for valuable consideration and without notice. In their replica the plaintiffs stated that the fact regarding agreement to sale dated 6.10.1997 was mentioned in the different suits instituted by the plaintiffs for eviction of Praveen Kumar Jain, who was in actual physical possession of the suit property. In their replica the plaintiffs stated that the fact regarding agreement to sale dated 6.10.1997 was mentioned in the different suits instituted by the plaintiffs for eviction of Praveen Kumar Jain, who was in actual physical possession of the suit property. It has been stated by the plaintiffs that defendant No. 2 is the brother-in-law of Praveen Kumar Jain and therefore he had notice of the agreement and was not a bona fide purchaser of the suit property without notice. In their replica the plaintiffs also denied that the suit property was mortgaged with the Bank. 9. The defendant No. 2 also filed Original Suit No. 1108 of 2004 (Jayant Kumar Jain v. Mukesh Kumar Jain and another) praying for a permanent prohibitory injunction restraining the plaintiffs from interfering in their possession over the suit property. The claim of defendant No. 2 in Original Suit No. 1108 of 2004 was based on the sale-deed dated 31.12.1997. 10. Original Suit Nos. 1108 of 2004 and 49 of 1998 were consolidated and heard together by the trial Court. 11. The issues framed by the trial Court, and relevant in the present Second Appeal, were - (1) Whether the defendant No. 1 had executed the agreement to sale dated 6.10.1997 after receiving the earnest money of Rs. 50,000/-? (2) Whether the plaintiffs were always ready and willing to perform the essential terms of the contract? (3) Whether time was the essence of contract? (4) Whether the suit was barred by Order 7 Rule 11 of the Code of Civil Procedure, 1908 and Sections 16 and 20 of the Specific Relief Act, 1963? (5) Whether the plaintiffs had violated the terms of the agreement dated 6.10.1997? (7) Whether the defendant No. 2 was a bona fide purchaser for valuable consideration without notice? (8) Whether the plaintiffs were entitled to any damages or compensation as claimed by them? 12. The trial Court vide its judgment dated 29.3.2006 decreed Original Suit No. 49 of 1998 The agreement to sale dated 6.10.1997 and the payment of Rs. 50,000/- as earnest money by the plaintiffs was admitted by defendant No. 1 therefore the issue regarding execution of the agreement to sale and payment of earnest money was decided by the trial Court in favour of the plaintiffs. 50,000/- as earnest money by the plaintiffs was admitted by defendant No. 1 therefore the issue regarding execution of the agreement to sale and payment of earnest money was decided by the trial Court in favour of the plaintiffs. The trial Court held that the conduct of the plaintiffs in purchasing the requisite stamps for registration of the sale-deed and two bank drafts of Rs. 1,50,000/- each for payment of the balance sale consideration proved their readiness and willingness to perform the terms of the contract. The trial Court held that the plaintiffs had proved the telegrams and fax messages sent by them on 20.12.1997, 24.12.1997 and 25.12.1997 and had also proved their presence in the office of the Sub-Registrar, Meerut on 23.12.1997 and 27.12.1997 while defendant No. 1 could not prove his presence in the office of the Sub-Registrar, Meerut on the aforesaid dates. The trial Court further held that payment by bank drafts was as good as a payment by cash. The trial Court rejected the plea of defendant No. 1 that Original Suit No. 49 of 1998 was barred by Order 7 Rule 11 C.P.C. or by Sections 16 and 20 of the Specific Relief Act, 1963 (hereinafter referred to as, 'Act, 1963'). The trial Court also held that time was not the essence of contract and in any case the plaintiffs were ready to get the sale-deed executed on 23.12.1997 and 27.12.1997, which could not be executed because the defendant No. 1 was not present in the office of the Sub-Registrar on the aforesaid dates. The trial Court also rejected the plea of defendant No. 2 that he was a bona fide purchaser of the suit property for valuable consideration without notice. While recording the aforesaid finding, the trial Court took note of the fact that defendant No. 2 was the brother-in-law of Praveen Kumar Jain, who was in actual physical possession of the suit property at the time of agreement dated 6.10.1997 and had appeared in the different suits instituted by the plaintiffs and defendant No. 1 for his eviction. The trial Court also took note of the fact that Praveen Kumar Jain and the defendant No. 2 were partners in a Firm named as Birla Aircon from whose account the sale consideration for executing the sale-deed dated 31.12.1997 was paid. The trial Court also took note of the fact that Praveen Kumar Jain and the defendant No. 2 were partners in a Firm named as Birla Aircon from whose account the sale consideration for executing the sale-deed dated 31.12.1997 was paid. While decreeing Original Suit No. 49 of 1998 through its judgment dated 29.3.2006, the trial Court held that execution of the contract would cause no loss to defendant No. 2 and no rights accrued in favour of defendant No. 2 on the basis of the sale-deed dated 31.12.1997. Consequently, the trial Court also dismissed Original Suit No. 1108 of 2004 instituted by defendant No. 2. 13. It is to be noted that in its judgment and decree dated 29.3.2006, the trial Court rejected the claim of the plaintiffs for damages and compensation on the ground that the said reliefs could not be granted in a suit for specific performance of agreement to sale dated 6.10.1997. 14. The judgment and decree dated 29.3.2006 passed by the trial Court was challenged by defendant No. 1 through Civil Appeal No. 71 of 2006, while the decree of the trial Court so far as it rejected the claim of the defendants for compensation and damages pendente lite was challenged by the plaintiffs through Civil Appeal No. 72 of 2006. 15. The lower appellate Court vide its judgment and decree dated 10.10.2006 allowed Civil Appeal No. 71 of 2006 and dismissed Civil Appeal No. 72 of 2006 and thereby dismissed Original Suit No. 49 of 1998 on the ground that the plaintiffs had not been able to prove that they were always ready and willing to perform the essential terms of the contract. The lower appellate Court held that the plaintiffs were only preparing evidence by purchasing bank drafts and requisite stamps to show their outward readiness and willingness and never actually intended to get the sale-deed executed. The lower appellate Court has drawn an adverse inference against the plaintiffs on the ground that the plaintiffs had purchased the requisite stamp required for execution of the sale-deed even though the agreement to sale stipulated that the requisite stamp and the registration charges were to be shared equally by the plaintiffs and defendant No. 1 and further that the defendants had not explained why they got prepared two bank drafts of Rs. 1,50,000/- each regarding the balance sale consideration to be paid at the time of execution of the sale-deed. The lower appellate held that bank draft was not a valid tender of sale consideration and payment of money in cash by 27.12.1997 was an essential term of the agreement. On the aforesaid reasons, the lower appellate Court held that the plaintiffs had not proved their readiness and willingness to perform the terms of the contract. The lower appellate Court also held the suit to be barred by Section 20 of the Act, 1963 and that the defendant No. 2 was a bona fide purchaser for valuable consideration. The lower appellate Court also held that in light of Section 13 of U.P. Act No. 13 of 1972, which prohibits the occupation or transfer of tenanted property to or by any person other than the allottee of the competent authority the suit was barred under Order 7 Rule 11 C.P.C.. The lower appellate Court held against the plaintiffs also on the ground that the plaintiffs had not sought the relief of cancellation of sale-deed dated 31.12.1997 and a decree of specific performance of agreement dated 6.10.1997 cannot be granted because after the sale-deed dated 31.12.1997 title to the suit property vested in defendant No. 2 and not defendant No. 1. On the aforesaid reasons, the lower appellate Court vide its judgment and decree dated 10.10.2006 dismissed Original Suit No. 49 of 1998. Hence, the present second appeal. 16. The appeal, vide order dated 17.1.2007, was admitted on the following substantial questions of law : (a) Whether the lower appellate Court was justified in reversing the finding of the trial Court and holding that there is no willingness on the part of the plaintiff-appellant for bringing his part of the contract as contemplated under Section 16(c) of the Specific Relief Act? (b) Whether the lower appellate Court committed a manifest error in holding the plaint of the plaintiff-appellant being adversely hit by provisions of Order 7 Rule 11 C.P.C.? 17. It was argued by the counsel for the plaintiffs-appellants that payment through bank drafts is as good as payment in cash and the lower appellate Court has erred in law in holding that the bank drafts prepared by the plaintiffs-appellants were not valid tenders of sale consideration. 17. It was argued by the counsel for the plaintiffs-appellants that payment through bank drafts is as good as payment in cash and the lower appellate Court has erred in law in holding that the bank drafts prepared by the plaintiffs-appellants were not valid tenders of sale consideration. It was further argued by the counsel for the appellants that the opinion of the lower appellate Court that the plaintiffs were only preparing evidence to show their outward readiness and willingness to perform the terms of contract relying on the fact that two bank drafts of Rs. 1,50,000/- each had been purchase by the plaintiffs-appellants is based on mere surmises and conjectures. It was further argued that the fact that the plaintiffs had purchased the requisite stamps was not a relevant factor to either decide the conduct of the plaintiffs or their readiness and willingness to perform the terms of contract and the lower appellate Court has wrongly relied on the aforesaid fact while deciding against the plaintiffs-appellants. It was argued that Section 13 of U.P. Act No. 13 of 1972 merely prohibits the occupation of building without allotment or release and has nothing to do with a suit for specific performance of contract and the lower appellate Court has wrongly held that Suit No. 49 of 1998 was liable to be dismissed under Order 7 Rule 11 C.P.C. in light of Section 13 of U.P. Act No. 13 of 1972. It was argued that the lower appellate Court has further erred in dismissing the suit of the appellants on the ground that they had not sought any relief for cancellation of sale-dated dated 31.12.1997. It was also argued by the counsel for the appellants that the agreement dated 6.10.1997 was registered and therefore defendant No. 2 shall be deemed to have notice of the aforesaid agreement and further, even on evidence, it was apparent that the defendant No. 2 had notice of the agreement dated 6.10.1997. It was argued that in the aforesaid circumstances, the defendant No. 2 was not a bona fide purchaser for valuable consideration and therefore the decree of specific performance of contract was not bared by Section 19(b) of the Act, 1963. It was argued that in the present case time was not the essence of contract and therefore defendant No. 2 cannot be held to be a bona fide purchaser of the suit property. It was argued that in the present case time was not the essence of contract and therefore defendant No. 2 cannot be held to be a bona fide purchaser of the suit property. It was argued that the evidence on record, especially the preparation of the bank drafts regarding balance sale consideration, notice by the plaintiffs-appellants to the defendant No. 1 requiring his presence in the office of the Sub-Registrar for execution of the sale-deed on 23.12.1997 and 27.12.1997, the presence of the plaintiffs in the office of the Sub-Registrar, Meerut on the said dates and the purchase of the stamps required for execution of the sale-deed proved that the plaintiffs were always ready and willing to perform the terms of the contract. It was argued that for the aforesaid reasons, the judgment and decree dated 10.10.2006 passed by the lower appellate Court is liable to be set aside and the judgment and decree dated 29.3.2006 passed by the trial Court is to be restored. In support of his arguments, the counsel for the appellants has relied upon the following judgments of the Supreme Court as well as of this Court : (a) Sohan Singh v. Sarwan Singh and others, (1996) 5 SCC 759 , (b) Syed Dastagir v. T.R. Gopalkrishna Setty, AIR 1999 SC 3029 , (c) Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and others, AIR 1997 SC 463 , (d) Saudul Azeez v. The District Judge, Gorakhpur, 2000 RD 10 , Allahabad H.C., (e) Nahar Singh v. Ramdutt and others, 1998 (16) LCD 940, (f) Godhan, S/o Pola and others v. Ram Bilas, S/o Mahesh, AIR 1995 ALLAHABAD 357, (g) R.K. Mohammed Ubaidullah and others v. Hajee C. Abdul Wahab (Decd.) through L.Rs. and others, 2000 (4) AWC 2694 (SC), (h) Ram Saran and another v. Kuriamal and others, 1988 ALL LJ 1288, (i) Dr. Govinddas and another v. Smt. Shantibai and others, AIR 1972 SC 1520 , (j) Durga Prasad and another v. Deep Chand and others, AIR 1954 SC 41 , (k) Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal and others, AIR 1971 SC 1238 , (l) Hashmuddin v. Kishan Lal, 1986 ALL LJ 693, (m) Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005 ; and (n) Jugraj Singh and another v. Labh Singh and others, AIR 1995 SC 945 18. Rebutting the argument of the counsel for the appellants, the counsel for the respondents has argued that the stipulation in the agreement dated 6.10.1997 regarding payment of the balance sale consideration in cash by 27.12.1997 was incorporated because the defendant No. 1 required money for getting benefit of Income Tax Scheme. It was argued that in the aforesaid circumstances, the stipulation regarding payment in cash was an essential term of the contract and admittedly the plaintiffs had not tendered the balance sale consideration to the defendant No. 1 in cash. It was argued that in the aforesaid circumstances the plaintiffs had failed to prove that they were always ready and willing to perform the essential terms of the contract and the suit was barred by Section 16(c) of the Act, 1963. It was also argued by the counsel for defendant No. 2 that in the circumstances of the present case, time was the essence of contract and the trial Court had wrongly held that time was not the essence of contract. It was further argued that defendant No. 2 was a bona fide purchaser for valuable consideration of the suit property and under Section 19(b) of the Act, 1963 no decree of specific performance could have been passed in favour of the plaintiffs-appellants adverse to defendant No. 2. It was further argued that the lower appellate Court has rightly held that in view of Section 13 of U.P. Act No. 13 of 1972, the plaint was liable to be rejected under Order 7 Rule 11 C.P.C. It was argued that for the aforesaid reasons, the present second appeal lacks merit and is liable to be dismissed. 19. I have considered the submission of the counsel for the parties and also perused the lower Court records. 20. There is no dispute between the parties regarding the execution of the agreement to sale dated 6.10.1997 and payment of earnest money by the plaintiffs to the defendant No. 1. No issue regarding the aforesaid facts is involved in the present second appeal. 21. 20. There is no dispute between the parties regarding the execution of the agreement to sale dated 6.10.1997 and payment of earnest money by the plaintiffs to the defendant No. 1. No issue regarding the aforesaid facts is involved in the present second appeal. 21. While decreeing Original Suit No. 49 of 1998, the trial Court held that payment of balance amount through bank draft was as good as payment by cash and the presence of the plaintiffs in the office of the Sub-Registrar on 23.12.1997 and 27.12.1997 as well as their act of purchasing the requisite stamps for execution of the sale-deed proved their readiness and willingness to perform the terms of the contract. The lower appellate Court has reversed the aforesaid findings on the ground that the payment of balance sale consideration through bank draft was not in accordance with the terms of the agreement and the conduct of the plaintiffs in purchasing the requisite stamps, even though the requisite stamp duty payable on the sale-deed was to be equally shared by the parties, only shows that the plaintiffs were preparing evidence to show their outward willingness to perform the terms of the contract and had never actually intended to get the sale-deed executed. On the aforesaid findings, the lower appellate Court has held that the plaintiffs were not entitled to the relief of specific performance of contract in view of Section 16(c) of the Act, 1963. The reasons give by the lower appellate Court are contrary to law. 22. The agreement dated 6.10.1997 stipulates that the vendor, i.e., the defendant No. 1 would execute the sale-deed of the suit property on payment in cash of the balance consideration amount by 27.11.1997. The claim of the plaintiffs that they had purchased the requisite stamps and had also prepared two bank drafts of Rs. 1,50,000/- each is proved from evidence and there is no dispute regarding the aforesaid fact. The issue in the present appeal is as to whether the proposed payment by bank drafts satisfies the terms of the agreement dated 6.10.1997. 23. In Sohan Singh v. Sarwan Singh and others, (1996) 5 SCC 759 , the Supreme Court held that payment by way of bank draft is as good as a payment in cash. The issue in the present appeal is as to whether the proposed payment by bank drafts satisfies the terms of the agreement dated 6.10.1997. 23. In Sohan Singh v. Sarwan Singh and others, (1996) 5 SCC 759 , the Supreme Court held that payment by way of bank draft is as good as a payment in cash. The lower appellate Court while referring to the judgment of the Supreme Court in Sohan Singh (Supra) has held that the aforesaid judgment is not applicable in the present case as in the said case the contract provided no specific mode of payment of money and in the present case the agreement provided payment in cash only. The difference between the facts involved in the present case and the facts involved in the case of Sohan Singh (Supra) as referred by the lower appellate Court is not borne out from a reading of the judgment of the Supreme Court. A reading of the judgment in Sohan Singh (Supra) clearly indicates that in the aforesaid case it was pleaded that the plaintiffs, i.e., the vendee in the aforesaid case, had committed breach of contract in not making cash payment in terms of the agreement though payment was tendered by bank draft. The Supreme Court rejected the aforesaid contention holding that payment by way of bank draft is as good a payment as cash in hand. It was held by the Supreme Court that payment of cash by the vendor would be had from the bank who would honour the same on behalf of the vendee. The Supreme Court held that the vendee had rightly presented the bank draft at the time of negotiation which is a legal tender of cash payment to the vendor and the act of the vendor in refusing to receive the bank draft was a breach of convenant in terms of the agreement. The relevant extract of the judgment in Sohan Singh (Supra) is reproduced below : 1. This special leave petition has been filed against the judgment and order of the Punjab and Haryana High Court at Chandigarh made in Second Appeal No. 333/96. The admitted position is that the petitioner had entered into an agreement on 14-6-1986 for sale of land admeasuring 6 kanals 13 marlas for consideration of Rs. 85,000/- per killa and received Rs. This special leave petition has been filed against the judgment and order of the Punjab and Haryana High Court at Chandigarh made in Second Appeal No. 333/96. The admitted position is that the petitioner had entered into an agreement on 14-6-1986 for sale of land admeasuring 6 kanals 13 marlas for consideration of Rs. 85,000/- per killa and received Rs. 6,000/- as earnest money and balance amount was agreed to be paid on registration. The sale-deed was to be executed by 15-7-1987. Since the petitioner failed to execute the sale-deed, the respondent filed the suit for specific performance. All the Courts below have concurrently found, as a fact, that respondent had presented a bank draft for the balance consideration of Rs. 64,000/- at the time of registration and that the petitioner refused to receive the same. Bank draft is as good a payment of the consideration as cash. The petitioner committed breach of the conditions in the performance of the contract. Accordingly, the decree for specific performance was granted. It is contended for the petitioner that payment by way of bank draft is not payment of the consideration by cash at the time of the registration of sale-deed by Sub-Registrar. Therefore, the petitioner committed no breach of any part of the contract. On the other hand, the respondent-plaintiff committed breach of contract in not paying cash consideration at the time of registration in terms of the agreement. The Courts below have committed manifest error of law in decreeing the suit for specific performance of the contract. We find no force in the contention. The payment by way of bank draft is as good a payment as cash-in-hand. Instead of bringing the cash, he had brought bank draft. Under these circumstances, the demand for payment of cash by the petitioner would be had from the bank who would honour the same on behalf of the respondent. The petitioner rightly presented the bank draft at the time of negotiation which is legal tender of cash payment to the vendor/petitioner. The refusal for receiving bank draft at the time of registration of the petitioner, therefore, is a breach of the covenant in terms of the agreement. The Courts below have not committed any manifest error of law to decree the suit for specific performance warranting interference.'' (Emphasis added) 24. The refusal for receiving bank draft at the time of registration of the petitioner, therefore, is a breach of the covenant in terms of the agreement. The Courts below have not committed any manifest error of law to decree the suit for specific performance warranting interference.'' (Emphasis added) 24. In light of the aforesaid judgment of the Supreme Court in Sohan Singh (Supra), it is held that the plaintiffs had not committed any breach of the agreement dated 6.10.1997 by offering to pay the balance consideration through bank draft and the findings of the lower appellate Court on the aforesaid issue are liable to be set aside. 25. Apart from the aforesaid, it is not the plea of defendant No. 1 and there is no evidence on record to indicate that the defendant No. 1 had insisted on payment by cash in place of payment by bank draft on the relevant dates, i.e., 23.12.1997 and 27.12.1997, which were the dates on which he was asked to be present in the office of the Sub-Registrar for execution of the sale-deed. The case of defendant No. 1 is that he was present in the office of the Sub-Registrar on 23.12.1997 and 27.12.1997 in response to the different telegrams and fax messages sent to him by the plaintiffs. The presence of the plaintiffs in the office of Sub-Registrar on 23.12.1997 and 27.12.1997 is proved by evidence. It is to be noted that through notice dated 25.12.1997 sent by the plaintiffs to the defendant No. 1, the defendant No. 1 was informed about purchase of bank drafts for payment of sale consideration. In absence of any plea or finding that the defendant No. 1 had refused to receive payment by bank draft and had insisted on payment in cash, the plaintiffs cannot be denied the relief of specific performance of contract on the ground that they had tendered payment of balance amount through bank drafts and not cash. It is only if the defendant No. 1 had insisted on payment by cash after being told that the payment would be made by bank drafts, the defendants could have raised the plea that the proposed payment by the plaintiffs was not in accordance with the terms of the contract. 26. It is only if the defendant No. 1 had insisted on payment by cash after being told that the payment would be made by bank drafts, the defendants could have raised the plea that the proposed payment by the plaintiffs was not in accordance with the terms of the contract. 26. At this stage, it may be noted that the lower appellate Court has drawn adverse inference against the plaintiffs for having purchased two bank drafts of Rs. 1,50,000/- each for the payment of balance consideration amount and also because the plaintiffs had purchased the requisite stamps for execution of the sale-deed even though under the agreement the parties were to equally share the cost of the stamp duty payable on the sale-deed. So far as purchase of the requisite stamps is concerned, the said act of the plaintiffs was more than their liability stipulated in the agreement. Under Section 16 of the Act, 1963 a plaintiff can be denied the relief of specific performance of contract if he fails to prove that he was always ready and willing to perform the essential terms of the contract. A plaintiff would not be denied relief because of doing any act which is more than his liability as stipulated in the agreement and therefore no adverse inference can be drawn against the plaintiff on that count. The lower appellate Court has clearly erred in drawing an adverse inference against the plaintiffs for having purchased the requisite stamps. 27. Similarly, the lower appellate Court has erred in drawing adverse inference against the plaintiffs for having purchased two bank drafts of Rs. 1,50,000/- each for payment of balance consideration amount. I have perused the lower Court records. The records do not show that the defendants had cross-examined the plaintiffs-witness on the aforesaid count. The plaintiffs were not asked the reasons for purchasing two bank drafts and not one single bank draft for the balance consideration amount. There can be many reasons for the plaintiffs to have purchased two separate bank draft and not one bank draft. 28. Both plaintiff Nos. 1 and 2 were vendees in the agreement to sale. A perusal of the lower Court records show that one Bank Draft No 261433/2281 dated 20.12.1997 for Rs. There can be many reasons for the plaintiffs to have purchased two separate bank draft and not one bank draft. 28. Both plaintiff Nos. 1 and 2 were vendees in the agreement to sale. A perusal of the lower Court records show that one Bank Draft No 261433/2281 dated 20.12.1997 for Rs. 1,50,000/- in the name of defendant No. 1 was purchased by the plaintiff No. 1 from his Savings Bank Account No. 16793 at Syndicate Bank, Meerut while the other Bank Draft No. 10737/97 dated 20.12.1997 favouring Ajay Pal Singh, i.e., defendant No. 1 was purchased by plaintiff No. 2, i.e., Aadesh Kumar Jain from his Savings Bank Account No. 3394 in Indian Overseas Bank, Meeut. It appears that both the plaintiffs had equally shared the sale consideration to be paid to the defendant No. 1 and that is why two separate bank drafts of equal amount were purchased by them individually. The aforesaid is not a finding by this Court but is being mentioned only to show that there are no limits to guess works and there can be many reasons for the act of the plaintiffs. The First Appeal Court hearing an appeal under Section 96 of the Code of Civil Procedure, 1908 is empowered to displace a finding of fact recorded by the trial Court after assessment of evidence. A finding recorded by the trial Court cannot be displaced merely on guess works, surmises and conjectures. As noted earlier, the plaintiffs were not subjected to cross-examination on their act of purchasing two bank draft therefore no adverse inference can be drawn against them on the aforesaid count. 29. Under the agreement the plaintiffs were required to pay the balance consideration amount of Rs. 3 lacs by 27.12.1997 and also to share the expenses for purchase of requisite stamps and other registration charges. The plaintiffs had tendered payment of the balance consideration amount through bank draft, there is nothing to show that the defendant No. 1 had insisted on payment by cash till 27.12.1997, the plaintiffs were present in the office of the Sub-Registrar on 23.12.1997 and 27.12.1997 to get the sale-deed executed, the plaintiffs had given notice to the defendant No. 1 to be present in the office of the Sub-Registrar on 23.12.1997 and 27.12.1997. The said facts clearly prove that the plaintiffs were always ready and willing to perform the terms of the contract. The said facts clearly prove that the plaintiffs were always ready and willing to perform the terms of the contract. There is no admissible evidence on record showing the presence of defendant No. 1 in the office of the Sub-Registrar either on 23.12.1997 or on 27.12.1997. Admittedly, the defendant had committed breach of the terms of the agreement. In view of the aforesaid, it is held that the plaintiffs cannot be denied relief by virtue of Section 16(c) of the Act, 1963 and the lower appellate Court was not justified in reversing the decree of the trial Court. The substantial question of law No. 1 is answered accordingly. 30. The other question that was argued by the counsel for respondents is that the defendant No. 2, i.e., the subsequent purchaser was a bona fide purchaser for valuable consideration without notice, therefore, the suit for specific performance of contract was barred by Section 19(b) of the Act, 1963. The case of the plaintiffs-appellants is that Praveen Kumar Jain was in actual physical possession of the suit property. Different cases were instituted by the defendant No. 1 against Praveen Kumar Jain for his eviction from the suit property. The plaintiffs in the present case were also joined as plaintiff in the aforesaid cases. In one of the case instituted by defendant No. 1 and the plaintiffs regarding the suit property reference was made to the agreement dated 6.10.1997. The said facts have not been disputed by the defendants. The defendant No. 2 is the brother-in-law of Praveen Kumar Jain. The defendant No. 2 and Praveen Kumar Jain are also partner in the firm Birla Aircon from whose account, the sale consideration of the sale-deed dated 31.12.1997 was paid to the defendant No. 1. Apparently, Praveen Kumar Jain had notice of the agreement between the plaintiffs and defendant No. 1. It is also the case of defendant No. 2 that he purchased the suit property after getting legal opinion regarding the terms of the agreement to sale dated 6.10.1997 and was advised by his counsel that the term of the agreement dated 6.10.1997 had expired. It was held by the Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005 , that in a contract relating to sale of immovable property time is normally not the essence of contract. It was held by the Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005 , that in a contract relating to sale of immovable property time is normally not the essence of contract. A wrong legal advise does not create any equity in favour of any person. The sale-deed was executed in favour of defendant No. 2 only 4 days after the time stipulated in the agreement dated 6.10.1997. The agreement dated 6.10.1997 is a registered document. In the circumstances narrated above, the defendant No. 2 shall be deemed to have notice of the agreement dated 6.10.1997. 31. In its judgment dated 10.10.2006 the lower appellate Court has also held that the defendant No. 2 had notice of the agreement dated 6.10.1997, but has rejected the plea of the plaintiffs on the ground that defendant No. 2 was a bona fide purchaser for valuable consideration. Section 19(b) of the Act, 1963 provides that specific performance of contract may be enforced against any person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. A reading of Section 19(b) of the Act, 1963 shows that mere good faith, i.e., the mere fact that the subsequent purchaser is a bona fide purchaser for value is not sufficient to dismiss the suit for specific performance of contract and a vendee under the agreement to sale will not be denied relief only because the subsequent purchaser was a bona fide purchaser for value if he had notice of the original contract. In order to invoke the bar of Section 19(b), the subsequent transferee has to also prove that he had no notice of the original contract. In the present case, the trial Court and the lower appellate Court have concurrently held that defendant No. 2 had notice of the agreement dated 6.10.1997. The suit of the plaintiffs was not barred under Section 19(b) of the Act, 1963 and could not have been dismissed only on the ground that the defendant No. 2 was a bona fide purchaser for value of the suit property. The findings of the lower appellate Court on the aforesaid count are also contrary to law. 32. The suit of the plaintiffs was not barred under Section 19(b) of the Act, 1963 and could not have been dismissed only on the ground that the defendant No. 2 was a bona fide purchaser for value of the suit property. The findings of the lower appellate Court on the aforesaid count are also contrary to law. 32. The next substantial question of law in the present second appeal is as to whether the suit of the plaintiffs was liable to be rejected under Order 7 Rule 11 C.P.C. The lower appellate Court has held that the suit of the appellants was liable to be dismissed under Order 7 Rule 11 C.P.C. in light of the provisions of Section 13 of the U.P. Act No. 13 of 1972. Section 13 of the U.P. Act No. 13 of 1972 provides as follows : ''13. Restriction on occupation of building without allotment or releases.-Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.'' 33. Section 13 of the U.P. Act No. 13 of 1972 only prohibits a person from 'occupying' any building covered by Act No. 13 of 1972 or part of the said building in any capacity otherwise than under an order of allotment. Act No. 13 of 1972 does not prohibit sale of the building. Admittedly, the defendant No. 1 was the absolute owner of the suit property. U.P. Act No. 13 of 1972 does not prohibit the sale of any property governed by the Act and only regulates rights of the landlord and tenant inter-se. The execution of a sale-deed only puts the vendee in the shoes of vendor. The findings of the lower appellate Court on the aforesaid count are also contrary to law and liable to be set aside and are hereby set aside. The second substantial question of law is answered accordingly. 34. The execution of a sale-deed only puts the vendee in the shoes of vendor. The findings of the lower appellate Court on the aforesaid count are also contrary to law and liable to be set aside and are hereby set aside. The second substantial question of law is answered accordingly. 34. It was argued by the counsel for the defendants-respondents and it has also been held by the lower appellate Court that the suit instituted by the appellant was not maintainable as no relief for cancellation of sale-deed dated 31.12.1997 was sought by the appellants. The aforesaid does not require any detail consideration as under Section 19(b) of the Act, 1963 a decree for specific performance of contract can also be enforced against any other person claiming under a party by a title arising subsequently to the contract. Further, it was held by the Supreme Court in Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal and others, AIR 1971 SC 1238 , that in cases where after the agreement to sale, the property has been transferred to a third person by the vendors, the proper form of the decree is to direct specific performance of contract between vendor and plaintiff and the subsequent transferee be asked to join in the conveyance so as to pass on the title residing in him. 35. For all the aforesaid reasons, the judgment and decree dated 10.10.2006 passed by the lower appellate Court is contrary to law and is liable to be set aside. 36. The judgment and decree dated 10.10.2006 passed by the lower appellate Court is hereby set aside and the decree dated 29.3.2006 passed by the trial Court is restored. 37. The second appeal is allowed. 38. Let the lower Court record be transmitted to the concerned Court at the earliest.