F.A. No.387/1996 1 HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH : Hon’ble Shri Justice A.K. Shrivastava F.A. No.387/1996 .....APPELLANT Suresh Chandra Mod, s/o Shri Defendant Ramchandra Mod, Resident of Lokhartalai Road, Tahsil Seoni Malwa, District Hoshangabad -Versus- ....RESPONDENTS:
1. Smt. Savitri Bai widow of Late Shri Plaintiff Ganesh Prasad Sharma, 2. Ashok Kumar s/o Late Shri Ganesh Prasad Sharma, 3. Anil Kumar s/o Late Shri Ganesh Prasad Sharma 4. Manot Kumar s/o Late Shri Ganesh Prasad Sharma 5. Krishnakant s/o Late Shri Ganesh Prasad Sharma Defendant No.2 6. State of Madhya Pradesh through Collector, Hoshangabad. ----------------------------------------------------------------------------- Shri Ashish Shroti, Advocate for the appellant. Shri A.K. Jain, Advocate for the respondents 1 to 5. Shri Santosh Yadav, Panel Lawyer for the respondent No.6/State. ----------------------------------------------------------------------------- Date of Hearing :
09. 10.2012 Date of Judgment :
11. 10.2012
JUDGMENT
{11.10.2012} Feeling aggrieved by the judgment and decree dated 18th April, 1996 passed by learned Second Additional Judge to the Court of District Judge, Hoshangabad in Civil Suit No.17-A/1991 F.A. No.387/1996 2 (Old No.88-A/1986) decreeing the suit of plaintiff for specific performance of contract, this first appeal has been filed by the defendant under Section 96 of the Code of Civil Procedure, 1908.
2. The present respondents are the L.Rs of the deceased-plaintiff who died during the pendency of this appeal and his name has been deleted from the cause title. However, hereinafter in this judgment the plaintiff would mean the deceased-plaintiff Ganesh Prasad Sharma.
3. In brief the suit of plaintiff is that he entered into an agreement of sale with the defendant-appellant in regard to the agricultural land, the description whereof has been mentioned in the plaint and which is the subject matter of the suit. In that regard, a document of agreement of sale was also executed on 5.1.1981. The defendant agreed to sell the suit land @`3000/- per acre and the total land is 12 acres. Thus, the consideration of the land in question was fixed to be `36,000/- . A sum of `5000/- was paid on the date of the execution of the document and it was agreed between the parties that the sale deed will be executed till 5.7.1981. Further it was agreed that if the defendants fails to execute the sale deed, the plaintiff shall be free to get the sale deed executed through the Court. It is also the case of the plaintiff that since two years took place in partition in the family of the defendant, therefore, the sale deed could not be executed on 5.7.1981, although the plaintiff F.A. No.387/1996 3 repeatedly requested the defendant to get the sale deed executed.
4. In para 2(b) of the plaint, the pleading of the plaintiff is that although it was agreed between the plaintiff and defendant that different lands (the description whereof has been mentioned in the document of agreement of sale) will be sold but in the family partition only Survey No.348/2 area 10.40 acres and Survey No.349 area 1.34 acres fell in the share of defendant upon which the defendant’s exclusive name has been mutated in the Revenue record. Further it has been pleaded by the plaintiff that the possession of the land in question has been delivered to him on 5.1.1981 and since then he is cultivating the suit land. It has also been pleaded that after making payment of advance money `5,000/- on the date of execution of document of agreement of sale i.e. 5.1.1981, the plaintiff further paid a sum of `25,000/- on 8.6.1981; `2000/- on 10.7.1981; `2000/- on 25.6.1983 and `5,000/- on 17.10.1983. Thus, upto 17.10.1983 the plaintiff paid a total sum of `34,500/- towards consideration. Specifically in para 3(a) of the plaint it has been pleaded by the plaintiff that on 17.8.1983 when defendant came to the plaintiff, he (plaintiff) asked him that the defendant is obtaining the part payment of the balance amount of consideration from time to time, but, is not executing the sale deed. On this, it was told by the defendant that within two months he will get the sale deed F.A. No.387/1996 4 executed, although the possession has already been delivered to the plaintiff.
5. The plaintiff further waited for two months as assured by the defendant but the defendant did not execute the sale deed. The plaintiff bona fidely again and again requested the defendant to obtain the balance amount of consideration and get the sale deed executed, but, since he was busy in his business, he was always assuring the plaintiff that the sale deed will be executed. Since the plaintiff was requesting the defendant again and again to get the sale deed executed and he (defendant) was avoiding to execute the same, a doubt has been carved out in his mind that the defendant is having some mala fide attitude, as a result of which on 10.9.1986 he sent registered post notice to the defendant asking him to get the sale deed executed. In the notice it was also stated that the plaintiff will remain present in the office of the Sub-Registrar on 15.9.1986 but despite this notice was received by the defendant on 11.9.1986 he did not execute the sale deed. On 15.9.1986 throughout the plaintiff was sitting in the Tahsil Court along with the balance amount of consideration as well as for purchasing the stamps and registration charges but the defendant did not turn up. Hence, the present suit has been filed praying a decree of specific performance of contract.
6. After the written-statement was filed by the defendant, the plaintiff amended his plaint and pleaded that the F.A. No.387/1996 5 transaction was not of loan not the defendant was in need of any money. It has also been pleaded that on 8.6.1981 an amount of `25,000/- which was paid by the plaintiff towards part of consideration, on the same date the defendant invested the said amount in National Savings Certificate and purchased the same for `12,500/- in his name and `12,500/- in the name of his wife for a period of six years, which has also been encashed by him on 15.6.1987. Similarly the plaintiff has further pleaded that the rest amount of consideration which has been obtained by the defendant from him he used to deposit the same in his Savings A/c of Bank of India.
7. A written-statement was filed by the defendant in which although he admitted the execution of document of agreement of sale on 5.7.1981 and further admitted that he obtained different amount on different dates from the plaintiff, but, according to him, the plaintiff is a money-lender and indeed the transaction was of loan.
8. Further the defendant has admitted that the possession of the suit land was delivered to the plaintiff but the possession of the land in question was delivered to him with an intention that whatever the profit the plaintiff will earn from the suit land, would be towards interest of the loan, which he took from the plaintiff. The factum of readiness and willingness has also been denied by the defendant. F.A. No.387/199”
9. By filing a counter-claim, the possession of the suit property has also been claimed by the defendant and hence, it has been prayed that the suit of plaintiff be dismissed and by decreeing the counter-claim the possession of the land in question be delivered to him.
10. The learned Trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit.
11. In this manner, this appeal has been filed by the defendant before this Hon’ble court assailing the impugned judgment and decree.
12. The contention of Shri Ashish Shroti, learned counsel for the appellant is that indeed, the transaction was of loan and it was not intended between the parties that the land in question would be sold to the plaintiff. Further it has been put forth by him that the possession of the suit property which was given to the plaintiff was towards the interest upon the loan which the defendant took from the plaintiff. In this regard, my attention has been drawn to the additional plea made in the written- statement. In the additional plea it has been pleaded that the loan of `5,000/- was obtained by the defendant and it was agreed between the parties that the interest @1% per annum would be paid. So far as the payment of different amount on different dates by the plaintiff is concerned, learned counsel submits that according to the defendant they were separate loan transactions and had nothing to do with the agreement of sale F.A. No.387/1996 7 and it was not the part of the consideration, as pleaded by the plaintiff. In this regard my attention has been drawn to para 2(k) of the written-statement. Learned counsel has also invited my attention to the testimony of the plaintiff and defendant who were examined as PW-1 and DW-1 respectively. By inviting my attention to para-4 of the testimony of the plaintiff it has been contended that in the examination-in-chief it has been stated by the plaintiff that still an amount of `15,000/- is to be paid by him to the defendant. Learned counsel submits that if the sale consideration was `36,000/- and when the plaintiff has already paid `34,500/- why he will say in his testimony that too in examination-in-chief that still he is required to pay a balance consideration of `15,000/- and therefore, it should be inferred that entire transaction was a loan and it was never intended by the parties that the suit property would be sold to the plaintiff.
13. By inviting my attention to Section 16(c) of the Specific Relief Act, 1963 (in short “the Specific Relief Act”.) it has been put forth by learned counsel that the plaintiff is not only required to plead that he is ready and willing to perform his part of contract but it should be proved also and in this regard my attention has been drawn to the decisions of Supreme Court in His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar, (1996) 4 SCC 52.and Bal Krishna and another vs. Bhagwan Das (Dead) by L.Rs and others , (2008) 12 SCC 14.F.A. No.387/1996 8 and also on the recent decision J.P. Builders and another vs. A. Ramadas Rao and another, (2011) 1 SCC 429.
14. By inviting my attention to para 3(c) of the plaint, it has been contended that although there is pleading of the plaintiff that on 15.9.1986 which is a date given in the notice to get the sale deed executed, the plaintiff was present throughout in the Tahsil Court along with the balance amount of consideration, stamp duty and the registration charges etc. but the defendant did not turn up and therefore, the sale deed could not be executed. However, when the plaintiff appeared in the Court as PW-1 he has not at all proved this pleading and therefore, it cannot be said that the plaintiff was ready and willing to perform his part of the contract.
15. Learned counsel submits that the conduct of the plaintiff is also a relevant factor in a suit for specific performance of contract and if it is borne out from the material placed on record that the plaintiff was not ready and willing to purchase the suit property, the suit cannot be decreed. By putting a great stress on the terminology “willingness”. it has been put forth by learned counsel that the last payment of `500/- was made on 17.10.1983 and till this date as per the case of the plaintiff a sum of `34,500/- in total was paid to the defendant but why he waited for three years and filed the suit only on 14.10.1986. This itself indicates that the plaintiff was not willing to perform his F.A. No.387/1996 9 part of contract, although he may be ready to purchase the suit property.
16. Learned counsel further submits that the learned Trial Court has decreed the suit of plaintiff in regard to the suit land Survey No.348/2 area 10.40 acres and Survey No.349 area 1.34 acres, however, Survey No.349 was not the subject matter of the agreement of sale dated 5.1.1981 (Ex.P-1) since this survey number is not figured in the document of agreement of sale. Hence, it has been prayed that by allowing this appeal, the suit be dismissed.
17. On the other hand, Shri A.K. Jain, learned counsel appearing for the plaintiff/respondent No.1 argued in support of the impugned judgment and submitted that throughout the plaintiff was ready and willing to perform his part of contract and also paid a handsome amount of `34,500/- and only the meager amount of `1,500/- was required to be paid and therefore, it cannot be inferred that the plaintiff was not ready and willing to perform his part of contract. Further it has been contended by learned counsel that after the last payment of `500/- was made on 17.10.1983, although the notice was sent on 10.9.1986, but, in between the plaintiff was reminding the defendant to get the sale deed executed upon which he was throughout giving assurance that it will be executed and plaintiff need not to worry. By inviting my attention to the receipt of the balance amount of consideration on different dates by defendant which is embodied F.A. No.387/1996 10 in the document of agreement of sale in the document itself, it is submitted that every time after receiving the part of the balance amount, endorsement was made by the defendant that the remaining amount shall be received at the time of registration of the sale deed. Learned counsel has put emphasis that if there would have been the intention of the parties in regard to the loan, certainly repeatedly it would not have been written by the defendant in his own writing that the balance amount will be paid at the time of registration of the sale deed and thus, it has been put forth by him that the transaction was not of loan but the defendant agreed to sell the land in question to the plaintiff.
18. Further it has been put forth by learned counsel for the respondents/plaintiff that the plea of loan was not found to be proved by the learned Court below and it was found to be false and therefore, the conduct of the defendant itself disentitles him from opposing the suit of specific performance of contract and in this context my attention has been drawn to the decision of Supreme Court Silvey and others vs. Arun Varghese and another, (2008) 11 SCC 45.
19. So far as the disparity in regard to survey numbers is concerned, it has been put forth by learned counsel that although the defendant agreed to sell different survey numbers to the plaintiff which are mentioned in the document of agreement of sale (Ex.P-1) but the same was not recorded in the Revenue record exclusively in his name and when the suit land F.A. No.387/1996 11 in Survey No.348/2 and 349 was exclusively recorded in the name of the defendant, the present suit has been filed for specific performance of contract for those survey numbers. Learned counsel further submits that it has been wrongly interpreted by twisting the statement of the plaintiff that still a sum of `15,000/- is to be paid to him and it is only a typographical error in the deposition-sheet. Learned counsel submits that once the discretion has been rightly exercised by the learned Trial Court on sound judicial principles for decreeing the suit of plaintiff for specific performance of contract, it should not be lightly brushed aside in the appeal and therefore, it has been prayed that this appeal be dismissed.
20. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part.
21. The crucial document which would decide the fate of the parties is the document of agreement of sale dated 5.1.1981 (Ex.P-1). The execution of this document is not at all in dispute, rather its execution has been admitted by the defendant. not only this, the factum of receiving the amount of `25,000/- on 8.6.1981; `2,000/- on 10.7.1981; `2,000/- on 25.6.1983 and `500/- on 17.10.1983 has also not been disputed by the defendant in the written-statement, although his plea is that these are the different loan transactions. But, in the document of agreement of sale, survey No.349 was never agreed between the parties to be sold to the plaintiff and therefore, according to F.A. No.387/1996 12 me, when the defendant never entered into an agreement of sale for this survey number, the plaintiff is not entitled for the decree of specific performance of contract and therefore, the suit of plaintiff for specific performance of contract so far as this survey No.349 area 1.34 acres is concerned, is hereby dismissed.
22. The question not hinges as to whether the transaction was of loan or not. The document in question Ex.P-1 is not at all in dispute, although in the document of agreement of sale it has been mentioned by the defendant that the different survey numbers which are mentioned in the agreement of sale fell in his share in partition but the exclusive name of defendant in the Revenue record has not been mentioned of these survey numbers. Later on, his name has been exclusively mentioned as Bhumiswami upon survey No.348/2 and also on 349 and therefore, survey No.348/2 which is the part of Survey No.348, since it was recorded in the name of defendant exclusively in the Revenue record, he was the exclusive Bhumiswami having possession of this land and this proposition has neither been disputed by any of the parties during the trial not has it been raised by the parties during the course of argument before this Court. The relevant Khasras are also on record in this regard.
23. The defendant Sureshchandra (DW-1) in his testimony in para-14 of his cross-examination has admitted that the endorsement made on the rear side of the document of F.A. No.387/1996 13 agreement of sale (Ex.P-1) was written by him in his own handwriting and he voluntarily wrote. Needless to say that on the rear side of the document of agreement of sale, the factum of receiving consideration has been admitted and further it has been specifically written by the defendant that the balance amount shall be received at the time of registration of the sale deed. If the transaction would have been that of the loan, certainly, the defendant would not have written in his own handwriting that the balance amount of consideration shall be obtained by him at the time of registration of the sale deed. Similarly, if the balance amount of consideration which was paid in part on different dates, would have been separate loan transactions as pleaded by the defendant in the written- statement, certainly in that regard the endorsement must not have been made on the rear side of the document of agreement of sale (Ex.P-1) but must have been separately written on a separate document. If the endorsement of receiving balance amount of consideration on different dates on the rear side of the agreement of sale is taken into consideration in proper perspective and if these endorsements are read in context to the agreement of sale (Ex.P-1) it would reveal that the transaction between the parties was not that of loan but the defendant agreed to sell the land in question mentioned in the document of agreement of sale (Ex.P-1) to the plaintiff and therefore, the plea of defendant which he has taken that it was a loan transaction F.A. No.387/1996 14 appears to be false and has been taken in order to save his skin from the decree of specific performance of the contract.
24. One important fact which cannot be marginalised and blinked away is that had there been intention of loan, certainly the defendant would not have invested the major portion of the consideration amount `25,000/- which was paid to him on 8.6.1981 by purchasing the National Savings Certificate respectively for a sum of `12,500/- on the same date in his own name and in the name of his wife. In this regard, Ex.P-17(c) and P-18(c) are quite relevant and it is gathered that this much amount the defendant has invested in purchasing the NSC and it was encashed on 1.6.1987. The defendant in his cross- examination (para-17) has admitted this fact also.
25. The plea of defendant that the transaction was loan, cannot be accepted for another reason that the factum of delivery of possession of the suit property has been admitted by the defendant in the written-statement as well as in the evidence. However, according to the defendant, the possession of the land in question was given to the plaintiff in lieu of interest which was agreed between the parties to be paid @1% per annum. I fail to swallow this argument for the simple reason that the possession of such a huge land of 12 acres will never be given to the plaintiff for a nominal loan amount of `5,000/- and interest thereon @1% per annum. Thus, I am having no scintilla of doubt in my mind that defendant never obtained a loan of F.A. No.387/1996 15 `5,000/- and executed the document of agreement of sale on 5.1.1987 for the security of the loan and further the amount which has been received by him towards part of consideration on different dates was also not a separate loan transaction. The Supreme Court in the case of Silvey ( supra) has categorically held in para-8 that if a false plea was taken by the defendant, the conduct itself disentitles him from opposing the suit of specific performance of contract.
26. However, under Section 16(c) of the Specific Relief Act the plaintiff is still required to prove his readiness and willingness. I am not at all impressed by the submission of learned counsel for the appellant that the plaintiff was not ready and willing to perform his part of contract. It be seen that the consideration of `36,000/- was fixed by the parties and out of this amount a sum of `34,500/- was already paid by the plaintiff to the defendant on different dates and only a meager amount of `1,500/- was required to be paid to the defendant and hence, in these facts and circumstances it cannot be said that the plaintiff was not ready and willing to perform his part of contract. So far as the disparity which arose in para 4 of the testimony of the plaintiff in examination-in-chief that still he is required to pay a sum of `15,000/- is concerned, according to me, it is only a typographical error because on bare perusal of this para it is gathered that the figure of `15,000/- is wrongly typed in place of `1,500/-. Indeed, this was the balance amount to be paid by the F.A. No.387/1996 16 plaintiff as per the calculation made hereinabove and therefore, it only appears to be a typographical error in the deposition sheet of the plaintiff.
27. I do not find any merit in the contention of learned counsel for the appellant that why the plaintiff waited for three years when the major portion of the consideration amount `34,500/- was paid upto 17.10.1983 and he sent notice to get the sale deed executed only on 10.9.1986. There is a specific pleading of the plaintiff in para 3(b) of the plaint and he has also proved this fact in his testimony and also put suggestion to defendant during his cross-examination and according to me, it can be inferred that the plaintiff was throughout insisting and pursuing the defendant to get the sale deed executed, but, ultimately when he found that the defendant is avoiding to get the sale deed executed, he has filed the suit for specific performance of contract. Learned counsel for the appellant has rightly submitted that time is not the essence of the contract to decree the suit of specific performance of the contract but looking to the conduct of the plaintiff for not getting the sale deed executed for three years it can be inferred that he was not willing to perform his part of the contract. To me, when the plaintiff already paid near about 95% of the sale consideration (in total `34,500/-), one cannot imagine that for a meager amount of `1,500/- he was not ready and willing to purchase the suit property. Indeed, looking to the facts and circumstances and F.A. No.387/1996 17 evidence on record, I am of the view that the plaintiff was always ready and willing to perform his part of the contract and defendant was avoiding to get the sale deed executed. In this backdrop, the decisions of the Supreme Court in His Holiness Acharya Swami Ganesh Dassji (supra), Bal Krishna (supra) and J.P. Builders (supra) which are placed reliance by learned counsel for the appellant are not applicable to the facts and circumstances of the case.
28. For the reasons stated herein-above, the suit of plaintiff in regard to Survey No.349 area 1.34 acres is hereby dismissed. However, rest part of the judgment and decree passed by learned Trial Court is hereby affirmed. Eventually, the counter-claim of defendant in regard to Survey No.349 area 1.34 acres also stands decreed. The plaintiff shall deliver the possession of Survey No.349 area 1.34 acres to the defendant and the defendant shall execute the sale deed in regard to Survey No.348/2 area 10.40 acres, failing which both the parties shall be free to get the decree executed.
29. Resultantly, this appeal is allowed in part to the extent indicated herein-above with no order as to costs. (A.K. SHRIVASTAVA) Judge S/