Judgment:
1 R IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH DATED THIS THE19H DAY OF DECEMBER, 2014 BEFORE THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA R.F.A.NO.5005/2011 BETWEEN JAMEEL AHMED S/O. LAL AHMED, AGE:
43. YEARS, OCC: BUSINESSMAN R/O. HOUSE NO.1-113, MEHTAB ALI COMPOUND, AIWAN-E-SHAHI ROAD, GULBARGA. .. APPELLANT (BY SRI PRAMOD N. KHATHAVI & SRI N.B.DIWANJI, ADVS.) AND1 SHAMSUNNISA BEGUM, W/O. LATE ZAMEER AHMED GOLA AGE:
50. YEARS, OCC:HOUSEHOLD, R/O. SPL. PLOT NO.6, INDUSTRIAL ESTATE, JEWARGI ROAD, GULBARGA. ALSO BY GPA SYED MOHAMMED S/O. ABDUL GAFFAR, AGE:40 YEARS, OCC: GOVT. SERVANT IN THE OFFICE OF THE JOINT COMMISSIONER OF COMMERCIAL TAXES, R/O. PLOT NO.6, INDUSTRIAL AREA, JEWARGI ROAD, GULBARGA. 2 2. THE EXECUTIVE ENGINEER O & M DIVISION, GESCOM, GULBARGA. (BY SRI. SREEVATSA FOR SRI.VINAYAK APTE, ADVS. FOR R1, SRI.R.S.PATIL, ADV. FOR R2) … REPONDENTS RFA FILED U/S.96 OF CPC AGAINST THE
JUDGMENTAND DECREE DT.13-10-2010 PASSED IN O.S.NO.125/2004 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN), GULBARGA, DECREEING IN PART THE SUIT FOR SPECIFIC PERFORMANCE OF SALE AND PERPETUAL INJUNCTION. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING
JUDGMENT
The 1st defendant of an original suit in O.S.125/04 which was pending on the file of Principal Civil Judge (Senior Divn.), Gulbarga, has filed this appeal under Section 96, C.P.C. as he is aggrieved by the judgment and decree passed against him for the relief of specific performance.
2. The 1st respondent herein is the plaintiff in the said suit. The 2nd respondent herein is the 2nd defendant in the said suit. Parties will be referred to as plaintiffs 3 and defendants 1 and 2 as per their ranking in the trial court.
3. Suit came to be filed seeking the relief of specific performance on the basis of an oral agreement of sale said to have been entered into by the appellant-1st defendant with the deceased husband of the plaintiff on 10.8.1988 agreeing to sell the entire suit industrial land and the structures put up thereon for a total consideration of Rs.9,99,900/-. The said suit had been contested by the 1st defendant-appellant by filing detailed written statement.
4. The case of the appellant-1st defendant is that the had agreed to sell half portion of the suit schedule property for a sum Rs.19,99,900/- and had entered into an agreement of sale with the deceased husband of the plaintiff. It was agreed that the outstanding liability of the 1st defendant with State Bank of Hyderabad, Supermarket Branch, Gulbarga, was to be discharged by 4 the husband of the plaintiff and the balance was to be paid by the 1st defendant in four instalments within two years from such oral agreement.
5. It is his case that since the deceased husband of the plaintiff had developed intimacy with a lady who was serving as kept-mistress, her husband wanted to provide separate accommodation to the said lady. In this regard, the 1st defendant had permitted the deceased husband of the plaintiff to use and occupy a portion of the building put up as office-cum-resthouse. The said agreement is stated to have been entered into by the 1st defendant with the deceased husband of the plaintiff because they were close friends.
6. By virtue of the judgment dated 13.10.2010, the 1st defendant has been directed to execute a regular sale deed by receiving Rs.2,00,000/- within 60 days from the date of the judgment, at the cost of the plaintiff. It is this 5 judgment and decree which is called in question on various grounds as set out in the appeal memo.
7. The facts leading to the filing of O.S.125/04 are as follows: a) Plaintiff’s husband and the 1st defendant were best friends and had developed fiduciary relationship. Both of them wanted to start a small scale industry jointly in order to manufacture agricultural equipments. In this regard, deceased husband of the plaintiff had asked the 1st defendant to apply for an industrial plot in Industrial Estate, Jewargi Road, Gulbarga. b) On the application filed by the 1st defendant, plot no.6 came to be sanctioned in his name and the industry ‘Agro Needs Castings’ was set up as a proprietary concern by the 1st defendant. The Department of Industries and Commerce, Government of Karnataka vide letter dated 17.8.1988 informed the 1st defendant that a subsidy of Rs.7,50,000/- had been sanctioned to the said 6 unit and released the same through the manager of State Bank of Hyderabad, Supermarket Branch, Gulbarga. The 1st defendant is said to have drawn the said amount as per procedure. c) Consequent upon release of the amount, machinery were purchased and buildings were put up by the 1st defendant. The office-cum-resthouse and industrial shed were put up for the manufacture of agricultural implements and the 1st defendant was solely responsible for its management, since the deceased husband of the plaintiff was otherwise busy in politics, being the Mayor of the City Corporation of Gulbarga. d) One fine morning, the 1st defendant met the deceased husband of the plaintiff and told him that the industry was in loss and therefore he proposed to sell the property in his favour for Rs.9,99,900/- on the condition that the latter should discharge the bank liabilities and should pay him Rs.2,50,000/-. It is further averred that 7 the 1st defendant had agreed to transfer the entire unit after the Karnataka State Small Industries Development Corporation (KSSIDC, for short) would execute the sale deed in his favour. It is further averred that the deceased husband of the plaintiff had suggested to the 1st defendant that she (plaintiff) should also be included as co-purchaser and the 1st defendant had accepted his suggestion. e) It is further averred that the oral agreement of sale dated 10.8.1988 on the terms mentioned above came into existence in the presence of the father of 1st defendant and other respectable persons. Pursuant to the said agreement, plaintiff’s husband is stated to have paid Rs.1,00,000/- to the 1st defendant by cheque as part payment and a receipt was executed on 3.4.1990. Thereafter deceased husband of the plaintiff credited a sum of Rs.49,094/- and Rs.3,00,905/- on 22.8.1991 in State Bank of Hyderabad, Supermarket Branch, Gulbarga. 8 f) After the death of plaintiff’s husband on 3.2.1991, plaintiff is said to have credited Rs.1,00,000/-, Rs.2,00,000/- and Rs.50,000/- to the account of the 1st defendant in State Bank of Hyderabad, Supermarket Branch, Gulbarga, on 24.6.1992, 27.6.1992 and 19.4.1992 respectively. Apart from this, plaintiff is said to have paid Rs.46,650/- to KSSIDC towards the price of the cancellation of the proposed road to be laid in the suit property. It is further averred that the plaintiff’s husband had credited amounts at different times towards interest on the outstanding debt of Rs.7,65,509- 15 and also paid balance amount in cash and also by cheque. In view of the untimely death of her husband, it was difficult for her to trace out the said payments. g) After the bank liabilities were discharged by the plaintiff and her husband, no-due certificate was issued by the bank on 24.9.1994 and later on KSSIDC chose to execute a sale deed in favour of the 1st defendant on 9 6.9.2001 and by that time, the 1st defendant had secretly shifted all important machinery from the unit. Pursuant to the said arrangement, the plaintiff is stated to be in uninterrupted and settled possession of the suit property and has been using electricity supply through meter bearing R.R.No.107757. h) It is further averred that the plaintiff was not in a position to renovate the industry immediately for want of proper finance and other reasons and therefore she leased the unit now known as “J.K.Function Hall” to one Raziuddin for starting a school, on 1.6.1994. Later on the plaintiff is stated to have leased the building in the suit property to the Department of Backward Minorities on rent for a period of 5 years from 14.8.1995, and then to one Jalees Ahmed Khan and Mohammed Maqbul Khan in the year 1999 for a period of 5 years. She is stated to have put up a wall for privacy between the resthouse and the shed with a wicket gate in the south eastern portion of the wall. 10 i) In the meantime, plaintiff is stated to have mobilized capital to rejuvenate the industry and therefore asked the 1st defendant to transfer the suit schedule property in her name as the KSSIDC had executed the regular sale deed. When such demand was made, the 1st defendant is stated to have proposed to her to be a partner of the partnership firm in respect of the industry and submitted an application on 17.11.2001. j) The case of the plaintiff is that she is ever ready and willing to perform her part of the contract in order to get such sale deed, but the 1st defendant is not ready to perform his part of the contract. On the other hand, the 1st defendant is stated to have filed a suit for permanent injunction in O.S.486/03 relating to a portion of the suit property and plaintiff had filed written statement in the said suit. Then the 1st defendant got issued a legal notice to her on 28.11.2003 to vacate the resthouse and even made an application to the electricity department to 11 disconnect power supply to the suit property. Later on the said suit was re-numbered as O.S.5/06 and was got dismissed as withdrawn by the 1st defendant. Later on he had put up a lock to the gate from outside. k) It is her case that after the receipt of Rs.2,50,000/- from her husband as agreed, the 1st defendant started an industry in plot no.L-7 with one Toshniwal as partner of Zarah Engineering Services. According to her, it was only an attempt to throw dust in the eyes of the plaintiff. Since the defendant chose to file a the suit for permanent injunction against her, this suit is stated to be the cause of action for her to file the suit for specific performance. l) The definite case of the plaintiff is that the entire amount has been paid by her and her husband and therefore the 1st defendant is obliged to execute the regular sale deed in respect of the suit schedule property. 12 Hence the relief for specific performance and perpetual injunction were sought in the plaint. m) The property in respect of which the relief of specific performance and injunction is sought is stated to be measuring 17,089 sq.feet situate at industrial shed, Jewargi Road, Gulbarga, bearing plot no.6 with office- cum-resthouse. The industrial shed is now called ‘J.K.Function Hall’ and has open space. n) The appellant-1st defendant in the trial court has filed a detailed written statement. According to him, special plot measures 17,089 sq.feet. A sketch for clarity of the location is also appended to the written statement. The averment that he had applied for a plot in the industrial estate on the advice of the deceased husband of the plaintiff has been specifically denied. The 1st defendant is stated to have filed an application seeking industrial land on his own in order to establish a proprietary concern under the name and style ‘Agro 13 Needs Castings’. The averment that he was informed by KSSIDC about the subsidy of Rs.7.5 lakhs and was availed by him after due procedure has been specifically denied. According to him, a sum of Rs.37,650/- only was sanctioned as subsidy. The plaintiff does not have any relationship with ‘Agro Needs Castings’ set up by him and her husband also had no concern in the said unit. According to him, the entire investment was made by him and it was his exclusive business. o) The averment that the 1st defendant informed deceased husband of the plaintiff about the loss sustained by him and proposed to sell the suit schedule property in his favour for a sum of Rs.9,99,900/-, has been specifically denied. The plaintiff has been called upon to strictly prove the same. It is averred that the industrial plot bearing No.L-7 absolutely belongs to him and the business set up therein was his exclusive business of exporting granite to USA. It is specifically averred that he did not depend on anybody, much less 14 deceased husband of the plaintiff or the plaintiff for any financial assistance. According to him, plot no.6 which is described as the suit property was allotted to him under a lease cum sale agreement on 20.2.1984 on the specific condition that he would not be entitled to transfer or assign the property to anybody without the written consent of KSSIDC. Hence he could not have agreed to sell the suit property either in favour of the plaintiff or her husband. p) The averment that he had agreed to receive Rs.2,50,000/- from her husband and that he had asked the deceased husband of the plaintiff to discharge the liability to the bank has been specifically denied. According to him, initially plot no.6 measured only 14,875 sq.feet and not 17,089 sq.feet. Therefore, he could not have agreed to sell the property measuring 17,089 sqft. The oral agreement dated 10.8.1988 set up by the plaintiff has been emphatically denied and plaintiff is called upon to strictly prove the same. 15 According to him, the deceased husband of the plaintiff was his intimate friend, and he had developed intimacy with a lady who was serving as his kept-mistress. Therefore the deceased husband of the plaintiff wanted to provide a separate accommodation to her and in this regard, 1st defendant was requested to provide accommodation. Accordingly the deceased husband of the plaintiff was permitted to use and occupy a portion of the office-cum-resthouse for himself and the said lady. Later on, deceased husband of the plaintiff proposed to purchase a portion on the southern side of the dividing wall for a sum of Rs.19,99,900/- and the 1st defendant had agreed upon the said consideration and remained committed. According to him, the outstanding liability of the 1st defendant at State Bank of Hyderabad, Supermarket Branch, Gulbarga was required to be discharged by the deceased husband of the plaintiff at the earliest, and the balance was to be paid to the 1st defendant in four instalments within two years from such 16 oral agreement which took place in the presence of Iqbal Ahmed, Khazim Khan and Abdul Khan. q) Agreeing to the above terms, the deceased husband of the plaintiff gave a post-dated cheque for Rs.1,00,000/- on 3.4.1990 and after the death of her husband, she chose to make payments into the bank. It is further averred that the payments so made was not brought to the knowledge of the 1st defendant. According to him, these payments were made to create documents so as to establish title to the property. The plaintiff is stated to be an utter trespasser having misused the confidence of the 1st defendant had in her husband. The 1st defendant has specifically averred that he never asked the plaintiff to become a partner of his firm and this is the handiwork of her brother-Syed Mohamed, general power of attorney holder. He is stated to have created documents as though the 1st defendant had proposed to the plaintiff to become a partner. The averment that he has received Rs.2,50,000/- from her husband has been 17 specifically denied. The present suit is filed as a counter blast to the suit filed by him in O.S.486/83 and the suit is not at all maintainable either in law or on facts. The plaintiff is stated to have made payment of Rs.46,650/- unauthorizedly to KSSIDC and he is prepared to return in all a sum of Rs.4,76,650/- to the plaintiff. According to him, there is no privity of contract between him and the plaintiff and the suit for specific performance is not maintainable either in law or n facts. She is stated not to be in lawful possession. r) So far as disconnection of electricity supply is concerned, he requested the authorities to disconnect it as the plaintiff wanted to create certain documents. With these pleadings he requested for dismissal of the suit. s) On the basis of the above pleadings, the trial court framed for following issues for consideration:
1. Whether the plaintiff proves that on 10.8.1988 the first defendant was orally agreed to sell the suit property for the valuable consideration of Rs.9,99,990/- in favour of her husband late Jameel Ahmed 18 Gola with further understanding that, her husband was to repay the bank loan which can be adjusted with the consideration and remaining amount of Rs.2,50,000/- was to be paid to the defendant No.1 at the time of execution of the sale deed?.
2. Whether the plaintiff further proves that she has passed the part consideration by way of repaying the bank loan?.
3. Whether the plaintiff proves that the time is not an essence of contract?.
4. Whether the plaintiff proves that she is ever ready and willing to perform her part of contract and the defendant No.1 was refused to perform his part of contract?.
5. Whether the plaintiff proves her lawful possession over the suit property in part performance of the contract?.
6. Whether the plaintiff proves that the illegal interference of the defendant No.1 to her lawful possession over the suit properties?.
7. Whether that the plaintiff proves the defendant No.2 has illegally disconnected the electric supply to the suit property?.
8. Whether the plaintiff proves that she is entitled for the specific performance of suit contract?.
9. Whether the plaintiff proves that she is entitled for the relief of mandatory injunction as sought?. 10.Whether the plaintiff proves that she is entitled for the relief sought?. 19 11. What decree or order?. The manager of State Bank of Hyderabad, Supermarket Branch, Gulbarga, is examined as PW1 in order to prove the payments made into the bank account of the 1st defendant. Plaintiff herself is examined as PW2 and one Mohamed Ahmed who was stated to be present when the oral agreement came into existence, is examined as PW3. The 1st defendant is examined as DW1 and Khazim Khan is examined as DW2. Plaintiff has got marked 69 exhibits and the defendant has got marked 4 exhibits. t) After hearing the arguments and perusing records, the learned civil judge has answered issue nos.1 to 6 and 8 in the affirmative and issue no.10 partly in the affirmative and has held that issue nos.7 and 9 do not survive for consideration. Consequently the suit has been decreed as prayed for, directing the 1st defendant to execute a regular sale deed on receiving the balance sale consideration of Rs.2,00,000/- to be paid by the plaintiff 20 within 60 days from the date of judgment and the 1st defendant to execute the regular sale deed within 30 days thereafter. u) It is this judgment which is called in question on various grounds as set out in the appeal memo.
8. Learned counsel for the appellant, Mr.Pramod Katavi has submitted his arguments elaborately. Learned senior counsel, Mr. Srivatsa representing the 1st respondent-plaintiff has also submitted his arguments elaborately.
9. Learned counsel, Mr.Pramod Katavi submits that the trial court has not properly analyzed the oral and documentary evidence in right perspective and has adopted a wrong approach to the real state of affairs. The trial court is stated to have ignored the false statements and averments made by the plaintiff. The trial court is stated to have not taken these false statements and averments while evaluating evidence. He 21 has further argued that the plaintiff, as per the finding of the trial court, herself is due Rs.2,00,000/- and that when she was under a mistaken notion that the entire consideration had been paid, the suit could not have been decreed. He has further argued that no suit for specific performance will be maintainable unless the defendant is put on notice by issuing prior notice. It is argued that the trial court has blown out of proportion some admissions found in the written statement filed by the 1st defendant in O.S.163/04 and that the same has been properly explained in his evidence.
10. Per contra, Mr.Srivatsa, learned senior counsel for the respondent-plaintiff has supported the judgment of the trial court contending that the admissions found in the written statement filed by the defendant in O.S.163/04 as per Ex.P5 is a clear admission and that it binds him for all practical purposes. It is further argued that the defendant himself has admitted about the oral agreement to sell the entire property for Rs.9,99,900/- 22 and handed over possession of the entire property to the deceased husband of the plaintiff and having acknowledged payment made by the deceased husband of the plaintiff, he (1st defendant) is estopped from pleading to the contrary. It is further argued that when the defendant has thoroughly failed to prove the subsequent oral agreement said to have been entered into with the deceased husband of the plaintiff to sell half of the property for a consideration of Rs.19,99,900/-, the case of the plaintiff is further strengthened and becomes more probabalized. It is argued that the trial court has adopted right approach to the state of affairs and has assessed the evidence on the touchstone of intrinsic probabilities.
11. It is further argued that for the first time in the written statement filed in O.S.125/04, the plea of oral agreement for a sum of Rs.19,99,90/- is set up and that plea is neither found in the plaint filed by him in O.S.586/03 nor in the written statement of O.S.163/04, 23 a suit filed by tenants, Jalees Ahmed Khan and Maqbul Khan. It is further argued that payment of a substantial amount and possession being with the plaintiff are strong circumstances probablizing the case of the plaintiff and that the said finding is proper and sustainable. Hence he has prayed for dismissal of the appeal.
12. Having heard the learned counsel for the parties and perusing the records inclusive of the appeal memo, the following points arise for consideration in this appeal:
1. Whether the trial court is justified in holding that there was an oral agreement between the defendant and the deceased husband of the plaintiff on 10.8.1988 for selling the entire suit schedule property measuring 17,089 sft. in special plot no.6?.
2) If proved, whether the plaintiff has proved the mandatory aspects of readiness and willingness to the hilt as required under Section 16(c) of the Specific Relief Act?. 24
3) Whether the trial court is justified in granting an equitable relief of specific performance in favour of the plaintiff?.
4) Whether any interference is called for, and if so, to what extent and what decree the parties are entitled for?. R E A S O N S13 Point no.1: In civil cases, pleadings are the foundation. Whatever evidence is to be adduced by the parties, the same must be dependent on the pleadings. Plaintiff’s case is that the plot measures 17,089 sq.feet and consists of an office-cum-resthouse and industrial shed now used as J.K.Function Hall. It is bounded on the east by State Highway, west by GDA Road, south by: residential house and north by: plot no.5(a). What is averred in the plaint is that deceased husband of the plaintiff and the 1st defendant were fast friends and in view of the close friendship, plaintiff’s husband had asked the 1st defendant to apply for a plot in his name, and on his advice, an application was filed by the 1st 25 defendant and special plot no.6 was sanctioned in his name. Plaintiff herself has admitted that the industrial shed was started under the name and style ‘Agro Needs Castings’ and it was a proprietary concern. The Department of Industries and Commerce, Government of Karnataka, vide letter dated 17.8.1988 is said to have informed the defendant that a subsidy of Rs.7,50,000/- had been sanctioned for the said unit and it was released through State Bank of Hyderabad, Supermarket Branch, Gulbarga, and the 1st defendant could claim the same as per procedure. Plaintiff’s further case is that the 1st defendant is stated to have collected the said amount.
14. In paragraph 4 of the plaint, it is specifically averred that in consequence of the building having come up as per the sanctioned plan, machinery were purchased and the 1st defendant was concerned with its management, since her husband was otherwise busy in politics, being the Mayor of Gulbarga City Corporation. The last sentence in paragraph 4 discloses that on one 26 fine morning, the 1st defendant informed her husband that the industry was in loss and therefore he proposed to her husband to purchase the suit schedule property for a sum of Rs.9,99,900/-. According to the plaintiff, as per the terms agreed between them, deceased husband of the plaintiff was to pay Rs.2,50,000/- to the 1st defendant and to discharge all bank liabilities and thereafter, the 1st defendant would execute the sale deed at the expenses of the plaintiff’s husband after the Department executing regular sale deed in favour of the 1st defendant.
15. In paragraph 6 of the plaint it is stated that plaintiff’s husband had suggested to the 1st defendant that plaintiff should also be included as the co-purchaser and 1st defendant had accepted the said suggestion. It is specifically averred that the oral agreement for sale and purchase of the land was entered into on 10.8.1988 was on terms mentioned above in the presence of the father of the 1st defendant and other respectable persons. Who 27 are those respectable persons when the oral agreement took place, is not forthcoming in the plaint. If a written agreement is relied upon by a party to seek the relief of specific performance, necessarily there will be signatures of some attestors and therefore mentioning their names in the plaint will not be required. But in the case of an oral agreement , it will be incumbent upon the party relying upon it to mention the names of those persons who were present at the time the talks that took place, if it is the case of the plaintiff that a few persons were present.
16. For the first time, plaintiff has mentioned the name of PW3-Mohd.Azmath, s/o Mohd.Hussain, aged 54 years stating that he was present on 10.8.1988 when the oral agreement took place. Admittedly Mohd.Azmath has purchased 10 lorries on credit basis from the plaintiff after the death of her husband, and has entered into a partnership agreement with her relating to transport business. In his cross-examination, he has deposed that 28 he had gone to the house of plaintiff along with one Yakub Sait at about 2.30 p.m. on 10.8.1988 and by that time, talks had already been concluded and talks were going on with regard to mode of payment. He has specifically deposed that no writing was done on that day, and nothing was discussed as to the time within which Rs.,1,00,000/- had to be given. It is his case that 2/3 months later, plaintiff’s husband had met him and told him that he had given Rs.1,00,000/- to the 1st defendant and the remaining amount had to be paid to the bank. He has admitted that he did not make enquiry about the remaining amount being discharged or paid. He has feigned ignorance about the amount paid by the plaintiff after the death of her husband. In his further cross-examination, PW3 has deposed that in the talks, it was agreed thatRs.2,50,000/- has to be given to the 1st defendant and remaining Rs.7,50,000/- had to be paid to the bank. He has specifically denied that on the said 29 day, nobody informed him about the actual loan that was pending.
17. A reading of the entire evidence of PW3 shows that his presence on 10.8.1988 appears to be doubtful. At one breath he states that when he went to plaintiff’s house, talks had already been concluded, and at another breath, he states that it was agreed between the parties to sell the suit schedule property for Rs.9,99,900/- and out of the same, Rs.2,50,000/- had to be given to the 1st defendant and remaining amount of Rs.7,50,000/- to be discharged to the bank. PW3, having purchased 10 lorries from the plaintiff on credit, is obliged to help her and it would not be out of place to mention that he is interested in the plaintiff.
18. Mr.Srivatsa, learned senior counsel has vehemently argued that a suit was filed by Jaleel Ahmed and Mohd.Maqbool Khan, so-called tenants of Shamsunnisa Begum (plaintiff) in O.S.163/04 on the file 30 of the Civil Judge (Junior Divn.), Gulbarga. The present 1st defendant herein was the 1st defendant in the said suit. The present plaintiff was the 2nd defendant in the said suit. Ex.P24 is the plaint filed in the said suit seeking for the relief of declaration that the entire suit schedule property measuring 17,089 sq.feet has been sold by Jaleel Ahmed in favour of Shamsunnisa Begum for a sum of Rs.9,99,900/- through an agreement of sale and on the basis of such agreement, Shamsunnisa Begum was in possession of the property. It is contended that since Jaleel Ahmed (1st defendant therein) started interfering with their possession, they, being tenants, had to file the said suit. Paragraph 4 of the certified copy of the plaint filed in O.S.163/04 contains the above averments.
19. Ex.P25 is the written statement filed by Jameel Ahmed-1st defendant therein. In paragraph 4, the following averments are made:
31. It is the possession ‘That the contents of Para-4 of the plaint are false are fabricated for purpose of this suit. It is relevant to submit that the Governor of Karnataka has sold Special Plot No.6 which is know as suit property to defendant No.1 under Registered Sale Deed on 5.10.2001 by receiving the full consideration of Rs.85,317/- and has delivered on 27.3.1979. Thus by virtue of this title deed the defendant No.1 is the absolute owner and possessor. further submitted that defendant No.1 has sold the suit premises to defendant No.2 for a consideration of Rs.9,99,900/- under an agreement, it is false to say that there was no negotiation of the suit property with the defendant No.2. In fact defendant No.2 is a pardanasheen lady she is stranger to defendant No.1. The plaintiff No.1 had dealing with defendant No.1 and had paid the rent of the premises leased out to him. The plaintiffs are hench men of defendant No.2 and they are hired person to support the defendant No.2. It is false to say that, there was lease deed with the plaintiff and defendant No.2 on any occasion. The alleged lease deed between the plaintiff and defendant No.2 is concocted document for the purpose of this split. It is utterly false to say that, the plaintiff had retained the leased period. The plaintiffs are stranger and are dancing to the tune of defendant No.2. The allegation of para-4 of the plaint are bogus and unconcerned to the defendant No.1, hence the contents of para under reply are denied.’ What is argued before this court by learned senior counsel, Mr.Srivatsa is that the 1st defendant himself has admitted about the agreement to execute sale deed for 32 Rs.9,99,900/- and therefore he cannot now wriggle out of the said admission.
20. He has relied on the decision in the case of MOTURI SEETARAMABRAHMAM .v. BOBBA RAMA MOHAN RAO & OTHERS (AIR2000ANDHRA PRADESH504. In the said case, there was an agreement of sale between the parties and defendant had put the plaintiff therein in possession of the property. This was coupled with the evidence of mediators establishing the case of the plaintiff and therefore the decree for specific performance was granted. Relying on the said decision, it is further argued that in the present case, PW3 has corroborated the version of PW2- Shamsunnisa Begum in material particulars and the trial Court is justified in decreeing the suit. It is argued that the admissions found in paragraph 4 of the written statement in O.S.163/04 are neither retracted nor properly explained as contemplated under Section 21 of 33 the Evidence Act, and therefore it is a valid admission and cannot be withdrawn.
21. Mr.Srivatsa, learned senior counsel has relied on Evidence in Trials at Common Law’ by John Henry Wigmore (Vol.9) Synopsis-2590, a discussion is made in regard to judicial admissions. It is as follows: judicial admission 2590. Effect of judicial admissions: (1) Conclusive upon the party making. The vital is universally conceded to be its conclusiveness on the party making it, i.e. the prohibition of any further dispute of the fact by him and of any use of evidence to disprove or contradict it. In view, however, of the commendable purpose which leads (or ought to lead) to the voluntary making of admissions, it is always said-and properly so—that the trial court has discretion the consequence of conclusiveness of an admission. feature of a to avoid 22. Relying upon another decision in the case of BRIJ MOHAN & OTHERS .v. SUGRA BEGUM & OTHERS ([1990]. 4 SCC147, it is argued that heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties and that it is a concluded oral agreement for sale of immovable properties. Whether 34 there was such an oral contract or not is a question of fact to be determined in the facts and circumstances of each individual case. This decision has been relied to contend that there is no legal prohibition for placing reliance on oral agreement of sale and the only condition is that the party relying on such agreement has to prove the same to the hilt. There is no dispute about this proposition of law. Therefore this does not require much discussion. Even Mr.Pramod Katavi, learned counsel for the appellant has not disputed this proposition of law and has fairly conceded to that extent.
23. Further reliance is placed on a single Bench decision of this court in the case of ANANDLAKSHMI & ANOTHER .v. DEPUTY COMMISSIONER, MYSORE DISTRICT & OTHERS (ILR2002KAR5199. Confessions and admissions have been discussed at length in paragraphs 30 and 31 of the judgment and it is reiterated that a fact in issue can be proved by confessions, admissions, positive evidence, or in some 35 cases, the court can take the aid of presumptions which is the rule of convenience. Admission can both be by record or evidence. It is made clear that if a person voluntarily with the knowledge of facts “admits” regarding any matter in issue before a judicial or quasi- judicial proceeding and if such admission is not retracted before being acted upon by the other side, the same operates as estoppel against the person making it. Admission by a person unless explained, furnishes the best evidence. The decision in the case of NAGUBAI AMMAL & OTHERS .v. B.SHAMA RAO & OTHERS (AIR1956SC593 has been relied upon in which the Hon’ble Supreme Court has made it clear that what a party himself admits to be true may reasonably be presumed to be so. But in the same decision, a rider is added that to act upon such proposition, it must be shown that there is clear and unambiguous statement by the opponent such as will be conclusive unless explained. 36 24. Reliance is placed on another decision of this court in the case SOWCAR T.THIMMAPPA .v. S.L.PRASAD (1978 Kant.
25) in which it is stated as follows: ‘It is no doubt true that admissions are not conclusive, but what a party himself admits to be the true state of affairs, may reasonably be presumed to be so unless admission is satisfactorily successfully withdrawn.’ explained or 25. A Bench consisting of three Hon’ble Judges of the apex court in the case of BHARAT SINGH & ANOTHER .v. BHAGIRATHI (AIR1966SC405 while dealing with admissions, has held that admissions are substantive evidence. Paragraph 22 of the decision is relevant and it is extracted below: ‘Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view Sections 17 and 21 of the Indian Evidence Act. Though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether the party making them appeared in the witness was confronted with those statement in case it made a statement contrary to those admissions. The purpose of contradicting the witness 37 under Section 145 of the Evidence act is very much is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.’ In the same decision it is further held in paragraph 27 that admissions, if true and pleaded, are by far the best proof of facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act made by parties or agents at or before hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions, according to this decision, are fully binding on the party that constitute waiver of proof and hence they, by themselves can be ground foundations of the rights of parties.’ Placing heavy reliance upon this decision, Mr. Srivatsa, learned senior counsel has argued that inconsistencies in the case of the plaintiff is not fatal to her case, more particularly in the light of strong 38 admission made by the 1st defendant in the written statement vide Ex.P25. It is further argued that the said admission has neither been retracted nor explained and therefore, it has become conclusive.
26. Placing reliance on yet another decision of a Bench consisting of three Hon’ble Judges of the apex court in the case of BISHWANATH PRASAD .v. DWARKA PRASAD (AIR1974SC170, he has argued that admission made by a party is substantive evidence if it fulfils the requirement of Section 20 of the Evidence Act. It is further held in the said decision that ‘a statement made earlier cannot be invoked to disbelieve evidence on the strength of a prior contradictory statement, unless it has been put to him as required under Section 145.’ Of course the decision referred in BHARAT SINGH .v. BHAGIRATHI (AIR1966SC405 has been followed in the case of BISHWANATH PRASAD. 39 27. In the instant case, whether the admission found in Ex.P5 is to be accepted for all practical purposes, is the question. It is true that the 1st defendant has admitted about the agreement to sell the suit schedule property to Shamsunnisa Begum-plaintiff for Rs.9,99,900/- under an agreement. But PW3-Mohamed Ahmed who is said to be the present on 10.8.1988 has deposed in his examination-in-chief that the 1st defendant had agreed to sell the suit property for Rs.9,99,900/-, but in his cross-examination, conducted on 17.12.2008, he has deposed that the agreement was for Rs.10,00,000/- less Re.1. He has further deposed that there was an agreement between the parties about Rs.1,00,000/- to be paid immediately and that it was not paid. As already discussed, his presence on the said day appears to be highly doubtful because of his deposition that deceased husband of the plaintiff told him two/three months later that the amount of Rs.1,00,000/- had been paid. The first demand made to the 1st defendant was 40 only on 3.4.1990 through cheque vide Ex.P4. If Rs.1,00,000/- had been paid a few days after 10.8.1988, and if the same had been intimated to him by the plaintiff’s husband, there would have been some documentary evidence to that effect and that is lacking.
28. As already stated, the first payment is made vide Ex.P4 on 3.4.1990 in a sum of Rs.1,00,000/-. This is yet another circumstance to doubt his presence on 10.8.1988.
29. The entire case of the plaintiff, as projected in the plaint, is that her husband had asked the defendant to file an application seeking allotment of land. At his instance, the 1st defendant filed an application and land was granted to him. The plaintiff has relied on the letter 17.8.1988 addressed by KSSIDC to the 1st defendant in the matter of establishing an industrial unit in plot no.6. What is averred in the plaint is that a sum of Rs.7,50,000/- was sanctioned to the 1st defendant for 41 establishing ‘Agro Needs Castings’ and was released through State Bank of Hyderabad, Supermarket Branch, Gulbarga, that the 1st defendant was asked to make claim as per procedure. It is further averred that he completed the procedure and collected the amount. The beginning sentence in paragraph 4 is that the building came up as per the sanctioned plan and 1st defendant was solely concerned with its management as plaintiff’s husband was otherwise busy in politics. The last sentence in paragraph 4 discloses that one fine morning 1st defendant met her husband and told him that the industry was in loss and therefore he proposed to the plaintiff’s husband to purchase the suit schedule property for Rs.9,99,900/- on the terms that he should discharge bank liability and also pay Rs.2,50,000/- to him for abandonment of his claim over the unit inclusive of ‘Agro Needs Castings’ and thereafter to convey the schedule property after obtaining sale deed from the KSSIDC. In paragraph 6, it is stated this suggestion was 42 accepted an oral agreement was entered into on 10.8.1988.
30. The sequence of events mentioned in the plaint will have to be read in the light of the documentary evidence placed on record by the plaintiff and defendant. Ex.D1 is a copy of the lease-cum-sale of developed plots executed by KSSIDC to the 1st defendant on 24.1.1984. The extent of plot said to be handed over to the 1st defendant vide Ex.D1 was 1,653 sq.yards, and it will be 14,877 sq.feet. Regular registered sale deed executed by KSSIDC in favour of the 1st defendant is on6.9.2001 and is marked as Ex.D2. The total extent of land sold to the 1st defendant by the KSSIDC was 17,089 sq.feet. The eastern boundary found in Ex.D2 differs from the eastern boundary found in Ex.D1 and the boundaries of other three sides tally. In Ex.D1, the eastern boundary is mentioned as proposed 15 feet wide road of KSSIDC and 100 feet wide state highway road, but in Ex.D2, the eastern boundary is mentioned as state highway. 43 31. As could be seen from Ex.D1, KSSIDC had proposed to form a road with a width of 15 feet abutting state highway. While executing sale deed vide Ex.D2, the eastern boundary is shown as highway which necessarily means that the KSSIDC had not formed any road and had given up its intention to form 15 feet wide road on the eastern side of the plot abutting the state highway. Therefore it was incumbent upon the plaintiff to have proved as to when exactly this proposed road of 15 feet width was given up. No evidence is placed on record by the plaintiff to show that as on 10.8.1988, this road was not in existence and had been given up. Therefore, a doubt arises as to how oral agreement could be entered into between the parties for conveying an area measuring 17,089 sft. which was not in existence as on 10.8.1988.
32. It is true that an averment made in judicial or quasi judicial proceedings is substantive evidence and becomes conclusive evidence if it is not explained or is 44 not retracted as per Section 21 of the Evidence Act. A question that arises is, as to whether this was the agreement relied upon by the tenants- Jalees Ahmed Khan and Mohammed Maqbul Khan when they filed the suit against the present defendant and plaintiff in O.S.163/04. On going through Ex.P24-certified copy of the plaint filed in O.S.163/04, there is only a reference about conveying the property though an the agreement of sale and no date of agreement is found. Whether the admission of the 1st defendant in paragraph 4 could be really considered as an admission relating to the oral agreement dated 10.8.1988, is the question.
33. Even in the lease deed stated to have been executed on 8.5.1989 in favour of Jalees Ahmed Khan and Mohammed Maqbul Khan vide Ex.P14 by Shamsunnisa Begum, the extent of the property and boundaries are not found. Therefore a doubt arises as to how the tenants could file the suit, O.S.163/04 to contend that there was agreement for the entire extent of 45 17,089 sq.feet. Of course the 1st defendant has not been able to probabalize his defense in regard to the proposed agreement of sale intending to sell half of the suit schedule property in favour of plaintiff’s husband for Rs.19,99,900/-. If that was his case, he would have mentioned so in the plaint filed in O.S.486/03 as per Ex.P22. He has taken up the said defense for the first time when the suit was filed against him for specific performance. Even in the written statement filed by him in O.S.163/04, there is no reference about the proposed agreement of sale to convey half of the property for Rs.19,99,900/-.
34. On the basis of broad preponderance of probabilities, it can definitely be said that the defendant has failed to probabalize that he had agreed to sell only half of the suit schedule property for Rs.19,99,900/-.
35. Ex.D3 is the sanction order issued by the KSSIDC by the general manager on 17.8.1988 to the 1st defendant 46 as proprietor of M/s Agro Needs Castings set up in special plot no.6. Consequent upon his application for grant of subsidy, it has informed him that Rs.37,650/- was the subsidy amount for which he was entitled. In the said letter, it is mentioned that district level committee had accepted the investment made by him to an extent of Rs.7.53 lakhs with Rs.4.40 lakhs towards building and civil works of Rs.3.13 lakhs towards plant and machinery. It also discloses that he had not yet commenced production. This is a very important document and the same will have to be viewed in the light of the plaint contents. Plaintiff has referred to this letter in her plaint in paragraph 3 and has averred that the defendant collected subsidy amount as per procedure. The averment that Rs.7.5 lakhs was sanctioned as subsidy is palpably incorrect in view of the letter issued by KSSIDC vide Ex.D3. Paragraphs 3 and 4 of the sanction order are relevant and they are reproduced below:
47. ‘Accordingly the amount of subsidy to is determined at which you Rs.37,650.00(Rupees Thirty Seven Thousand Six Hundred Fifty Only) @ 5% State Subsidy. entitled As your unit is yet to commence (Rupees production, a sum of Rs……. …………….) is being 85% of subsidy sanctioned will be released to you and the balance amount after the unit commences regular commercial production.’ On a conjoint reading of paragraphs 3 and 4 of the plaint, it is seen that the 1st defendant had put up building and installed machinery by spending money of his own and therefore he was sanctioned subsidy of Rs.36,750/-. Consequent upon the sanction of subsidy, he commenced business. A plain reading of Ex.D3 shows that the question of incurring loss by the 1st defendant did not arise as he had not at all commenced work on 17.8.1988. He had only put up a building and installed machinery. After commencing business, he is stated to have sustained loss and therefore he approached the deceased husband of the plaintiff proposing to sell the suit schedule property and the building put up thereon for Rs.9,99,900/-. Thus it could 48 be said with certainty that the 1st defendant might have approached the deceased husband of the plaintiff after he commenced business and having sustained loss. Hence, he could not have intended to sell the property on 10.8.1988, as averred by the plaintiff.
36. As already discussed, if the deceased husband of the plaintiff was expected to pay Rs.2,50,000/- without any delay to the 1st defendant and to discharge the bank liability, he would not have waited till 3.4.1990 to pay him only Rs.1,00,000/-, that too, through cheque, for the first time.
37. In the case of OUSEPH VARGHESE v. JOSEPH ALEY AND OTHERS reported in 1969 (2) SCC539 (1969(2) SCC539 the Hon’ble apex court after perusing the oral and documentary evidence, has held that the agreement relied on was highly interested one, more specially when there was no clear cut evidence for proving the oral terms of contract alleged to have been entered into between the plaintiff and 1st defendant 49 therein. The finding of the trial court, according to the apex court, alone should have been sufficient to non-suit the plaintiff. As per the facts of the said case, the agreement pleaded by the defendant therein wholly differed from the one pleaded by the plaintiff and they did not refer to the same transaction. They were totally two different agreements. Apart from that, there was no specific averment in regard to the readiness and willingness to perform the agreement pleaded in the written statement. A specific reference is made about the application of Forms 47 and 48 of Appendix I, C.P.C. requiring the suit to be filed for the relief of specific performance.
38. In the present case, the plaintiff has very much relied on the oral agreement dated 10.8.1988. As already discussed, the presence of PW3 appears to be highly doubtful in the light of his oral evidence. The fact that he is very much interested is forthcoming from the transaction he has with the plaintiff. Thus if the evidence 50 of PW3 is excluded, the oral evidence that remains for consideration is that of PW1. Even in cases of written agreement of sale, courts in most of the cases, do not grant equitable relief of specific performance. Hence the Hon’ble apex court has held that greater burden is always on the person setting up the plea of oral agreement.
39. It is true that admissions found in pleadings are very important and the 1st defendant has not made any attempt to clarify the admissions found in paragraph 4 of his earlier written statement in O.S.163/04. But that does not give leverage to the plaintiff, in the light of various inconsistencies brought about to contend that the agreement which is referred to by the 1st defendant in Ex. P25 is relatable to the agreement of sale dated 10.8.1988 relied upon by the plaintiff. In paragraph 14 of OUSEPH VARGHESE’s case, the Hon’ble apex court has held that ‘the burden of proving an oral agreement is 51 naturally on the plaintiff and therefore plaintiff’s task is all the more difficult.’ 40. Jaleel Ahmed and Maqbul Khan who were plaintiffs in O.S.163/04 have not pleaded any specific oral agreement of sale between the 1st defendant and deceased husband of the plaintiff. Their case is that the 1st defendant had orally agreed to sell the suit schedule property in favour of the 2nd defendant therein (plaintiff in the present case) , whereas the averments made in the present plaint disclose that Shamsunnisa-plaintiff has relied on the oral agreement entered into between her husband and the 1st defendant in the presence of respectable persons on 10.8.1988.
41. The inordinate delay of making payment of Rs.1,00,000/- to the 1st defendant vide Ex.P4 also probablises the case of the 1st defendant that there was no agreement on 10.8.1988 and whatever agreement referred to in paragraph 4 of Ex.P25 must be subsequent to the oral agreement on which the plaintiff is placing 52 any reliance. It is not her case that originally the property was 14,875 sq.feet only and that the 1st defendant was in possession of 3,000 and odd sq.feet on the eastern side and that the Corporation had intended to convey the said land also. Just because plaintiff chose to pay Rs.46,650/- to the KSSIDC for the extra land at a subsequent date, it cannot be inferred that this was also part and parcel of the original alleged oral agreement of sale dated 10.8.1988.
42. Ex.P11 is the endorsement issued by State Bank of Hyderabad, Supermarket Branch, Gulbarga, on 7.2.2004 stating that a demand draft for Rs.46,650/- dated 11.7.2001 favouring KSSIDC, Gulbarga, was purchased by Shamsunnisa Begum. If this amount is considered as the purchase money of 3,000 and odd sq.ft. area, it is ununderstandable as to how she could lay claim on the basis of this endorsement. She has further placed reliance on Ex.P15-copy of the letter dated 17.11.2001 said to have been addressed by the 1st defendant-Jaleel 53 Ahmed to the Deputy Chief Engineer, KSSIDC, seeking permission to take Sahsunnisa Begum, wife of Late Zameer Ahmed Gola as partner of his partnership firm. Admittedly Agro Needs Castings was also a partnership firm. He had entered into another partnership with one Toshniwal as referred to above, in respect of a unit established in special plot no.7. If Ex.P15 were to be relied on by the plaintiff to say that the 1st defendant had agreed to take her as partner, then the question of agreement of sale does not arise at all, or is deemed to have been given up by her. Alternatively Ex.P15 does not disclose whether the said letter dated 17.11.2001 refers to the partnership firm consisting of the 1st defendant and Toshniwal or any other partnership firm.
43. The plaint contents disclose that Agro Needs Castings was the proprietary concern of the 1st defendant. Therefore Ex.P15 does not come to her rescue in any manner. The inability of the 1st defendant in not explaining the admissions found in paragraph 4 of 54 Ex.P25 cannot be considered as a strong and favourable circumstance favouring the plaintiff. In the light of the contents of the plaint and other oral and documentary evidence placed on record, a serious doubt arises about the very oral agreement dated 10.8.1988 relied on by the plaintiff.
44. Just because plaintiff is in possession of the suit schedule property and substantial amount has been paid by her, it cannot be said that the same pertains to the oral agreement dated 10.8.1988. The initial burden cast on her to effectively prove the oral agreement dated 10.8.1988 has not been effectively discharged. Therefore the admissions found in paragraph 4 cannot be read in isolation. The entire contents of paragraph 4 in Ex.P25 have to be read as a whole.
45. There is a specific averment made by the 1st defendant in the written statement in O.S.163/04 that plaintiffs therein were the henchmen of plaintiff- 55 Shamsunnisa Begum and were set up by her. Admittedly they did not pursue that suit to its logical end and allowed it to be dismissed. The possibility of plaintiff setting up the said persons against the 1st defendant cannot be ruled out, more particularly in the light of the lease deed marked as Ex.P14 which contains no schedule, nor extent nor boundaries.
46. The averment made by the plaintiff that the 1st defendant had proposed to take her as partner must be relatable to Ex.P21, partnership deed entered into between the 1st defendant-Jaleel Ahmed and Toshniwal on 16.1.1991 relating to Zarah Engineering Services. If this document is looked into, it can be said that the 1st defendant was having good business and was looking after another unit established in special plot no.7 measuring 900 sq.yards which is equivalent to 2,100 sq.feet. Hence the plaintiff has not been able to prove that the 1st defendant had entered into an oral agreement of sale with her husband to convey the suit schedule 56 property, though the 1st defendant has also failed to probablise his defense of another oral agreement for transferring half the suit schedule property for Rs.19,99,900/-.
47. The story put forward by the plaintiff appears to be improbable. One cannot forget that the plaintiff’s husband and defendant were fast friends and their relationship was very cordial. What can be said is that neither side has come out with the true version before court. The court can grant a decree for specific performance of a contract when the party pleading it is specific and it must be established by convincing evidence. Therefore one sentence in paragraph 4 of Ex.P25 cannot be blown out of proportion to make out a case of oral agreement dated 10.8.1988. What is held in the case of OUSEPH VARGHESE is ‘rarely a decree for specific performance is granted on the basis of an agreement supported solely by an oral agreement . That apart, the oral testimony adduced in support of the oral 57 agreement pleaded by the plaintiff appears to be highly interested one.’ Hence, point no.1 is answered in the negative.
48. Point No.2: When the very oral agreement of sale set up by the plaintiff is not proved, the question of considering readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act does not arise. Having framed a point in regard to readiness, it is incumbent upon this court to give a finding on the said point.
49. In the case of K.S.VIDYANADAM & OTHERS .v. VAIRAVAN (AIR1997SC1751, the Hon’ble Apex Court has held that the courts will apply greater scrutiny and strictness when the purchaser was ready and willing to perform his part of the contract. The said decision has been relied upon by the Hon’ble apex court in the case of SHARADAMANI KANDAPPAN .vs. Mrs.S.RAJALAKSHMI & OTHERS (AIR2011SC3234. What is argued before 58 this court by learned senior counsel, Mr.Srivatsa is that possession is with the plaintiff and substantial amount has been paid to the 1st defendant and therefore these important circumstances have been borne in mind by the trial court while granting the relief. While making elaborate discussion on point no.1 above, this court has held that plaintiff has not been able to prove the alleged oral agreement of sale dated 10.8.1988. In view of the close friendship of the 1st defendant with the deceased husband of the plaintiff, possession so held cannot be treated as one related to the alleged oral agreement of sale dated 10.8.1988.
50. The conduct of the plaintiff and her husband will have to be looked into. The plaintiff has relied on the agreement of sale dated 10.8.1988 . Sixteen years after the alleged agreement of sale, suit came to be filed by the plaintiff. Regular sale deed was executed in favour of the 1st defendant by the KSSIDC on 6.9.2001 vide Ex.D2. Plaintiff who has examined herself as PW2 knew very well 59 about the execution of the sale deed by the KSSIDC and did not take any steps to call upon the 1st defendant to execute regular sale deed. Even otherwise, as per Ex.D1, the lease-cum-sale executed by KSSIDC on 24.1.1984 in favour of the 1st defendant discloses that he was not legally permitted to convey the property or assign any interest to anybody or even enter into an agreement of sale. The plaintiff or her husband knew very well that there was a legal inhibition to purchase the suit schedule property and still they ventured to purchase the same.
51. Even if the stand of the plaintiff were to be accepted that there was an oral agreement on 10.8.1988, her own pleadings and evidence discloses that her husband was expected to payRs.2,50,000/- immediately and to discharge bank liability. The first payment was made to the 1st defendant on 3.4.1990 in the form of cheque for Rs.1,00,000/- which is supported by receipt- Ex.P4 executed by the 1st defendant. Nothing is placed on 60 record as to when the remaining amount of Rs.1,50,000/- was paid by the 1st defendant.
52. As per Ex.D3 dated 17.8.1988, the letter addressed by KSSIDC to the 1st defendant, State Bank of Hyderabad had released Rs.7.53 lakhs to the 1st defendant and he was liable to pay the accrued interest. Plaintiff has not placed any document to demonstrate that the entire bank liability has been discharged. Even otherwise plaintiff has not placed any record to show as to what exactly was the bank liability when the last payment was made by way of cash on the strength of Rx.P9, receipt for Rs.15,000/- dated 19.4.1993. The details of payments made to the 1st defendant are found in Ex. P6 which is as follows: i) Rs.1,00,000/- on 3.4.1990 by cheque; ii) Rs.3,00,905/- deposited to the loan account of the 1st defendant in State Bank of Hyderabad, Supermarket Branch, Gulbarga, on 22.8.1991; iii) Rs.46,094/- on 22.8.1991 61 No amount was paid till 24.6.1992 on which day only Rs.1,00,000/- was deposited into the loan account vide Ex.P7. On 27.6.1992, Rs.2,00,000/- was deposited into the loan account of the 1st defendant vide Ex.P8 and Rs.50,000/- was paid on 19.4.1993 to his loan account and this is forthcoming from Ex.P9. Lastly Rs.46,450/- was paid by the plaintiff towards the cost of cancellation of road. If all these amounts are taken into consideration, the total amount paid by the plaintiff and her husband would amount to Rs.8,46,649/- and not Rs.8,00,000/- as determined by the trial court.
53. It is not as though the entire liability was discharged on 19.4.1993. Almost 4 years 8 months had elapsed since Ex.D3 came into being. Interest was accruing on the amount. The case put forth by the plaintiff is that she has paid all the amount to the 1st defendant , but she has not been able to trace some documents regarding payment. But the trial court has found that she is still due Rs.2,00,000/- and the moment 62 the finding was given, plaintiff chose to deposit the same in the trial court. This would go to show that plaintiff has accepted the said finding and this is an adverse circumstance to her case.
54. What exactly was the amount paid to the 1st defendant and what exactly was the amount payable to him should have been made clear by means of notice. The suit is filed on the strong ground that the entire amount had been paid, but the trial court has held that she is liable to pay Rs.2,00,000/-. The Hon’ble apex court in the case of (MANJUNATH .v. TAMMANNASA (AIR2003SC1391 has reiterated that Section 16(c) of the Specific Performance Act makes it obligatory to the plaintiff seeking enforcement of specific performance of coming to court with clean hands and also plead that he has performed or is ready and willing to perform his/her part of the obligation. Unless this is specifically averred and proved, Section 16(c) creates a bar to grant this equitable and discretionary relief. 63 55. In the case of NIRMAL ANAND .v. ADVENT CORPORATION (2002 Supp. SCR706, the Hon’ble apex court has once again reiterated that ‘it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court, in its discretion, can impose any reasonable condition including payment of additional amount by one party to another by granting or refusing a decree of specific performance.’ The said principle has again been reiterated in the case of M.V.SHANKAR BHAT .v. CHAND PINTO ([2003]. 1 SCR1212 What is ‘reasonable time’ within which a suit for specific performance has to be filed will be dependent on the facts of each case. In P.Ram Iyer’s LAW LEXICON The Encyclopedic Law Dictionary, the expressions ‘reasonable’ and ‘reasonable time’ means ‘looking at all circumstances of the case,’ ‘reasonable time under ordinary circumstances,’ since circumstances will permit; so much time as necessary under the circumstances, 64 conveniently to do what the contract requires should be done.’ 56. A constitutional Bench of the Hon’ble apex court in the case of CHANDRANI .v. KAMALRANI (1993 SC1742 has held that ‘incase of sale of immovable property, there is no presumption as to time being the essence of the contract. Even if it is not the essence, the court may infer that it is to be performed in a reasonable time if the conditions are met, (i) from the express terms of the contract, (ii) nature of the property and (iii) surrounding circumstances. This decision has been referred to in the case of SHARADAMANI (supra) and also in the case of VIDYANADAM (supra). In the case of VIDYANADAM, the Hon’ble apex court has held as follows: “It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow 65 that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity?. It would also mean denying the discretion vested in the cr.urt by both Sections 10 and 20. As held by a Constitution Bench of this court in Chand Rani v. Kamal Rani, [1993]. 1 S.C.C. 519, "it is clear 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 (evident)?. : (1) From the express terms of the contract; (2) from the nature of the property; and(3) from the surrounding circumstances, for example, the object of making the contract". In other words, look at all the relevant the court should circumstances time-limits in the agreement and determine specified whether specific its discretion performance should be exercised. Now in the case of urban properties in India, it is well- known that their prices have been going up sharply over the last few decades - particularly after 1973*. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing to grant including the 66 the sale expired with 15th of June, 1979. The suit notice was issued by the plaintiff only on 11.7.1981, i.e., more than two years after the expiry of six months' period. The question is v/hat was the plaintiff doing in this interval of more than two years?. The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The Trial Court has accepted the defendants' story whereas the High Court has accepted the plaintiffs story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11.7.1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered the balance consideration. Defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The to pay 67 tenant has been examined by the defendant as DW-2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile [i.e., on the expiry of six months from the date of agreement]., he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between December 15, 1978 and July 11, 1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 1/2 years, the prices went up by three times and that only because of the said circumstance has the plaintiff [who had earlier abandoned any idea of going forward with the purchase of the suit property]. turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15.12.1978 till 11.7.1981, i.e., for a period of more than 21/ 2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendant's case that the values of the house property in Madurai town was rising fast and this must have induced the plaintiff to wake up 68 after 2 1/2 years and demand specific performance. to agree if the said decision 11. Sri Sivasubramanium cited the decision of the Madras High Court in Section V. Sankaraninga Nadar v. P.T.S. Ratnaswamy Nadar A.I.R. 1952 Mad. 389 holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality - and the reality is constant and continuous rise in the values of urban properties - fuelled by larger- scale migration of people from rural areas to urban centers and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs. 5,000/- and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs. 5,000/- [as against the total consideration of Rs. 60,000/-]. the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so.” 69 This principle has been once again reiterated in SHARADAMANI’s case and it is held that the said concept needs to be re-visited by the apex court at the earliest.
57. Readiness speaks about the financial capacity of the party seeking specific performance and willingness speaks about the eagerness to have the sale deed at the earliest. In the present case, plaintiff herself has averred in the plaint and has deposed that she was in financial difficulty to rejuvenate the industry. This would speak of her financial inability. Just because she is unable to trace some papers in respect of the entire amount paid inclusive of interest accrued on the loan, the court cannot give her any benefit of doubt holding that she is a widow. On the other hand, after the death of her husband, she was managing the property with the help of her brother who is her GPA holder. Her brother chose to file written statement as GPA holder in O.S.486/03, and Ex.P23 is the certified copy of the written statement 70 filed by the plaintiff in that suit through her brother-Syed Mohammed. She has deposed that he was depositing money into the account of the 1st defendant and managing the property and looking after its affairs. The said Syed Mohammed is not examined before this court. According to the plaintiff, he is very well acquainted with the facts of the case. Non-examination of such an important witness would enable the court to draw an adverse inference under Section 114(g), Evidence Act.
58. The plaintiff was expected to prove that the amount which was required to be paid by her to the 1st defendant and also to the bank had been possessed by her or she had the capacity to raise money and discharge the debt. In the present case, plaintiff has made a false averment in the plaint that she had entered into an agreement of sale with the 1st defendant for an area measuring 17,089 sft. It is already discussed as to how such extent was not available. She has even averred and also asserted in her examination-in-chief that the entire 71 sale consideration has been paid. Later on she accepts the finding of the trial court and deposits Rs.2,00,000/-. With such false averment and assertion, a party seeking the equitable relief of specific performance is not entitled for such relief. Thus the plaintiff has failed to prove readiness and willingness as required under Section 16(c) of the Specific Relief Act. Hence point no.2 is answered in the negative.
59. Point no.3: In view of my finding on point nos. 1 and 2, plaintiff is not entitled for an equitable and discretionary relief of specific performance. The trial court has not properly assessed evidence in right perspective. The trial court has more persuaded by the fact of payments made on different dates and possession being with the plaintiff and admission found vide Ex.P25. The vital aspect of the possibility of entering into an oral agreement on 10.8.1988 in respect of the whole extent of land has been overlooked by the trial court. The trial court has not considered the aspect of readiness and 72 willingness in right perspective keeping in mind the mandate of Section 16(c), Specific Relief Act.
60. Admittedly the suit schedule property is an urban property in Gulbarga. It has greater potentiality and as held by the Hon’ble Supreme Court, the market price of urban properties escalate every now and then. Apart from this the property in question is an industrial area abutting state highway. Though the suit is filed within 3 years from the date of KSSIDC executing the sale deed in favor of the 1st defendant, the trial court has not looked into whether the 1st defendant is legally entitled to convey the property, since he himself did not have any right for quite a long time. The initial burden cast on the plaintiff has not been discharged effectively, and the weaknesses, if any, in the case of the adversary cannot be taken advantage of by the plaintiff, more particularly in a suit for specific performance. Hence point no.3 is answered in the negative. 73 61. Point no.4: Admittedly the plaintiff has thoroughly failed to prove the oral agreement dated 10.8.1988. Although she is in possession of the property, she is not entitled for protection under section 53A of the Transfer of Property Act, as there is no written agreement. She has been using the property for quite a long time and records have been made available to show that she has been renting to ‘J.K. Function Hall’ and also to Social Welfare Department and she was getting monthly income. Though the plaintiff has paid in all Rs.8,46,649/- right from 3.4.1990. the plaintiff has not sought the alternative relief of refund of money paid to the 1st defendant. But during the course of advancing arguments, learned council, Mr. Pramod Katavi has fairly submitted that the 1st defendant is ready and willing to repay the entire amount that would be determined by this court with reasonable interest thereon and would not like to deprive her of her entitlement. 74 62. A Division Bench of this Court in the case of Smt.Neelawwa v. Smt.Shivawwa reported in AIR1989KAR45has specifically held that under Order VII Rule 7, C.P.C. reliefs can be moulded. In the present case, taking into account the fair submission of the learned counsel, this court is of the opinion that the 1st defendant must be directed to refund the entire amount of Rs.8,46,649/- with reasonable interest thereon.
63. In the result, I pass the following order:
ORDERThe appeal filed under Section 96, C.P.C. challenging the judgment and decree passed in O.S.125/04 which was pending on the file of Principal Civil Judge (Senior Divn.), Gulbarga, is allowed in entirety with costs. The judgment and decree of the trial court are set aside. Consequently the suit is dismissed. The appellant- 1st defendant shall pay a sum of Rs.8,46,649/- (rupees eight lakhs forty six thousand six hundred forty nine 75 only) with interest at 15% (fifteen) p.a. thereon from the date of filing the suit till deposit. He shall deposit the said amount with interest within one month from today before the trial court and shall intimate the plaintiff both by registered post as well as certificate of posting. Thereafter the plaintiff is granted six months time to vacate and hand over vacant possession of the suit schedule property without altering the present state of the property in any manner. In case the plaintiff fails to vacate and hand over vacant possession of the suit schedule property within the time fixed by this court, the 1st defendant is at liberty to seek possession of the same through the executing court. Sd/- JUDGE vgh*