Gopal Krishan Vyas, J.
1. This civil first appeal was initially filed by defendant late Lajpat Rai under Section 96 of the Code of Civil Procedure against judgment and decree dated 04.02.1986 passed by Addl. District Judge, Bhilwara in Civil Original Suit No. 1/81 (36/79), whereby, learned trial Judge decreed the suit of the plaintiff-respondent for specific performance of contract.
2. The above appeal was filed by late Lajpat Rai against plaintiff late Jorawar Singh and, on the date of filing the appeal, both the parties were alive; but, during the pendency of this appeal, both appellant and respondent died. Due to death of original plaintiff- respondent Jorawar Singh on 10.07.1998 his legal representatives were taken on record vide order dated 16.03.1999. Similarly, defendant-appellant Lajpat Rai also died and vide order dated 15.03.1997, legal representatives of defendant-appellant were taken on record. Thereafter, necessary amended cause-title has been filed.
3. According to facts of the case, plaintiff-respondent late Jorawar Singh filed suit for specific performance of contract in the Court of District Judge, Bhilwara stating therein that defendant-appellant Lajpat Rai entered into an agreement with him for sale of his house situated in Ward No. 8 Sindhu Nagar Colony, Bhilwara for a sum of Rs. 2,20,001/- on 03.11.1978 and he has paid a sum of Rs. 15,001/- to the defendant as earnest money. As per terms of the agreement, the sale deed was required to be executed within three months from the date of execution of the agreement, the sale-deed was to be made in two parts - one for the first floor and, another, for the second floor which was in possession of one Asan Das Sindhi, a mortgagee.
4. In the plaint, it was specifically stated that the plaintiff would pay a sum of Rs. 95,000/- at the time of execution of the sale-deed for the first floor and rest of the amount when the sale for the second floor is executed. In the plaint, it was further stated that plaintiff paid a sum of Rs. 8,000/- on 26.12.1978 for purchase of stamps to one Murlidhar Jagetiya at the instance of defendant and plaintiff further paid a sum of Rs. 7,000/- on 30.12.1978 to defendant and obtained receipt for the said amount from him and he was ready and willing to perform his part of contract for which he gave notice on 12.01.1979 and 15.01.1979 to the defendant.
5. The defendant gave notice through telegram to the plaintiff on 30.03.1979 in the morning and second in the evening stating therein that he was ready and willing to perform his part of contract and will execute sale-deed on 31.03.1979, therefore, all the formalities may be completed. In reply, the plaintiff informed through telegram that the plaintiff remained present in the office of the Sub Registrar, Bhilwara on 31.03.1979 and though the plaintiff remained present in the office of Sub Registrar but the defendant did not come to perform his part of contract. As per plaintiff on 31.03.1979 two applications were filed by him before the Sub Registrar to prove the fact that he remained present in his office for performing his part of contract.
6. As per the plaintiff, due to non-performance of contract he sustained loss of Rs. 20,000/-, therefore, he prayed that contract may be got specifically performed and, in the alternative, decree for return of the amount of Rs. 30,001/- along with interest at the rate of 1% and damages to the extent of Rs. 20,000/- may be passed.
7. Before the trial Court after issuance of the notice upon the above suit, the defendant-appellant filed written-statement and refuted all the allegations and submitted that the house in question is property of HUF and could only be sold for legal necessity of the family and, while admitting the fact that agreement was executed in favour of the plaintiff on 03.11.1978 for Rs. 2,20,001/-. It was further admitted by the defendant in the suit that he received a sum of Rs. 15,001/- as earnest money on 03.11.1978. The defendant stated in the written-statement that it was agreed upon by the parties that the plaintiff would pay a sum of Rs. 95,000/- at the time of executing the sale- deed for the first floor and after receipt of the said amount, he will redeem second floor which is mortgaged and, after redemption of the second floor only mortgagee Asan Das was required to vacate the premises. It was also agreed that after receipt of Rs. 95,000/- for execution of the sale-deed for the first floor, the defendant was required to intimate the Director, Industries Department, Bhilwara to attorney the tenancy rights in favour of the plaintiff; but, the plaintiff was not ready and willing to perform his part of contract because he had no funds to pay to the defendant.
8. It was further stated in the reply that the plaintiff got the challan signed for obtaining the stamps but it was specifically denied by the defendant-appellant that he caused Rs. 8,000/- to be paid by the plaintiff to Murlidhar Jagetiya. Further, a request was made by the defendant to plaintiff on 30.12.1978 to pay a sum of Rs. 95,000/- on that day but the plaintiff only paid a sum of Rs. 7,000/-. The plaintiff did not bring the draft of sale-deed for approval by the defendant though he was ready and willing to perform his part of contract provided the plaintiff was ready and willing to pay the sum of Rs. 95,000/-. But, since the plaintiff was not ready and willing and since he wanted to change the terms of the contract initially agreed, the contract could not be performed.
9. In the reply, it was further specifically averred that on 08.01.1979 plaintiff came to the defendant and wanted him to execute new agreement to sale; meaning thereby, the plaintiff was not ready and willing to perform his part of contract and breached the contract on 08.01.1979 and, thereafter, he unnecessarily tried to show his willingness and gave notice to the defendant. It is also replied that had the plaintiff given the amount of Rs. 95,000/- the defendant would have got the second floor redeemed as Asan Das was ready and willing to vacate the said premises but the amount was not paid by the plaintiff and defendant was also ready and willing to pay the amount which was due against him under loan for the MIGH Scheme. Since the plaintiff abandoned his idea to perform the contract in accordance with agreement dated 03.11.1978 and since he did not show his ability to purchase stamps for executing the sale-deed in respect of the first floor and even did not get the draft for execution of sale-deed, the defendant is not liable to sell the property to the plaintiff. It is further stated in the written-statement before the trial Court that defendant sustained loss of Rs. 15,000/- due to breach of contract and plaintiff is not entitled to any decree for specific performance of contract and, so also, for damages.
10. Upon application filed for taking rejoinder in respect of new facts on record, the trial Court granted permission to the plaintiff to file his rejoinder only in respect of new facts which were pleaded by the defendant in the written-statement. The plaintiff- respondent filed additional plaint in which he asserted that he was ready and willing to perform his part of the contract and also gave new facts for which permission was not given. With regard to draft agreement dated 08.01.1979 it was said that the draft agreement was got prepared by the defendant-appellant as he wanted to be saved from the capital gain tax and he wanted Rs. 40,000/- unaccounted money from the plaintiff. It is further stated that in pursuance of this thinking that he gave three challans to Murlidhar Jagetiya and stamps worth Rs. 2,151/-, Rs. 2,061/- and Rs. 3,321/- were purchased. This amount was for the purchase of portion of the value of Rs. 1,05,000/- and it was stated that the plaintiff gave draft along with drawing to the defendant.
11. After filing written-statement, learned trial Court framed the following issues:
1& D;k izfroknh us oknh ls fo; i= fy[ks tkus ds fy;s LVkEi ; djus gsrq 8000@& :- fnukad 26-12-78 dks Jh eqjyh/kj tkxksfV;k dks fnyok;s A
2& D;k oknh lafonk izn'kZ 1 dh ikyuk djus dks lnSo m|r ,oa rRij jgk ijUrq izfroknh us lafonk ds izfr tks nkf;Ro Fkk dk fuoZgu ugha fd;k vkSj bl izdkj lafonk dk Hkaxhdj.k fd;k A
3& izn'kZ ,3 i{kdkj ds e/; lEikfnr gksus ls okn ij D;k izHkko iM+rk gS A
4& D;k oknh izfroknh ls ;Fkksfyf[kr ikyuk dh fMh ugha gksus ij vfxze /ku 15000@& :- o {kfriwfrZ ds 20000@& :- izkIr djus dk vf/kdkjh gS A
5& D;k fooknxzLr lEifRr la;qDr fgUnw ifjokj dh gS A ;fn ,slk gS rks bldk okn ij D;k izHkko iM+rk gS A
6& vuqrks'k D;k gksxk A
12. To prove the case by the plaintiff, statements of plaintiff Jorawar Singh, P.W.-1, Murlidhar Jagetiya, P.W.-2 and Shanti Lal, P.W.-3 were recorded before the trial Court and from the side of the defendant-appellant, defendant examined himself as D.W.-1.
13. After hearing both the parties, learned Addl. District Judge, Bhilwara vide judgment and decree dated 04.02.1986 decided issue No. 1 against plaintiff- respondent but held that stamps remained with the defendant. Issue No. 2 was decided in favour of the plaintiff-respondent while holding that he was ready and willing to perform his part of contract and further issue No. 3 was also decided in favour of the plaintiff respondent and against the defendant-appellant and it has been held by the learned trial Judge that Ex.-A/3 did not come in way of the parties as both the parties did not agree to create new contract. So far as issue No. 4 is concerned, the same was decided partly in favour of the plaintiff-respondent and it was held that the plaintiff would not sustain loss more than Rs. 15,000/-. Consequently while deciding issue No. 6 with regard to relief the learned trial Judge decreed the suit of the plaintiff respondent for specific performance of contract on the condition that the plaintiff would pay a sum of Rs. 1,90,467/-, out of which, he would get the property redeemed from Asand Das and would also pay off other loans. The plaintiff was also granted the cost of the suit.
14. Learned Counsel for the defendant-appellant vehemently argued that the trial Court has committed gross error of law while deciding the suit against the appellant-defendant because the plaintiff has not proved his case to get any relief from the Court in the suit. Learned Counsel for the appellant while attacking upon the conclusion of issue No. 1 argued that one Nathu Lal deposited the amount for purchase of stamps and obtained challan and gave these challan to Murlidhar Jagetiya. After purchase, the stamps were given to Nathu Lal by Murlidhar Jagetiya and, subsequently, the stamps were given to defendant by Nathu Lal and the same remained with the defendant. The above finding is totally baseless and contrary to the evidence on record. The conclusion of purchasing stamps by Murlidhar Jagetiya of Rs. 7,533/- is totally erroneous because upon perusal of the judgment itself it would reveal that this finding is self-contradictory. The plaintiff-respondent in the pleadings of plaint specifically stated that he gave a sum of Rs. 8,000/- to Murlidhar Jagetiya for purchase of stamps at the instance of the defendant which was specifically denied by the defendant-appellant. Therefore, the finding with regard to purchase of stamps amounting to Rs. 8,000/- is perverse on the face of record. In the plaint, there was no pleading that dalal (broker) Nathu Lal purchased the stamps, then, finding of the trial Court with regard to issue No. 1 is totally illegal.
15. With regard to issue No. 2, it is submitted that learned trial Judge has erred while deciding issue No. 2 in favour of the plaintiff-respondent because the plaintiff ought to have produced the material to show that he was having the funds with him, he ought to have produced his account-books or his bank account to establish before the Court that on the crucial date he was having ready amount of Rs. 95,000/- with him. Therefore, in the absence of such documentary evidence no finding can be given on the basis of mere assertion that the plaintiff was ready and willing to perform his part of contract.
16. Learned Counsel for the appellant vehemently argued that the plaintiff-respondent was not having sufficient fund and no material was placed on record that he was having funds, therefore, this fact ought to have been examined objectively by the trial Court. From perusal of the notice given by the plaintiff, it would reveal that the plaintiff has nowhere stated that he ever gave draft or drawings to the defendant- appellant for his approval. Material facts pleaded in the plaint can be looked into and none other fact can be considered for adjudication by the trial Court but, in this case, learned trial Judge erred in law while relying upon the plaintiff's evidence, therefore, the finding with regard to issue No. 2 that the plaintiff was ready and willing to perform his part of contract is perverse.
17. Further, it is submitted that contract was formed in two parts and, in the first part, the plaintiff was to pay sum of Rs. 95,000/- and, out this amount, the appellant-defendant was to pay Rs. 35,000/- as mortgage money to Asan Das; and, thereafter, he was to get the property redeemed and was to obtain the vacant possession from Asan Das. Further, out of Rs. 95,000/- he was to pay the amount of loan created under the MIGH scheme but, as per evidence on record, there is no document which shows that the plaintiff- respondent has offered Rs. 95,000/- to defendant- appellant, therefore, learned trial Judge committed error while deciding issue No. 2 in favour of the plaintiff- respondent.
18. With regard to existence of document Ex.-A/3, it is submitted that the learned trial Judge ought to have examined the said document. There is no dispute between the parties that Ex. -A/3 was written by Shankar Lal who was counsel for the defendant. The dispute is as to who got it prepared. The learned trial Judge ought to have given his finding in this respect. The defendant-appellant has fully proved that the plaintiff brought this document and he wanted the defendant-appellant to sign it simultaneously for the lower portion. Therefore, upon the finding of the learned trial Court with regard to Ex.-A/3 it can be said that the learned trial Judge has failed to examine that who has got prepared the said document. In this view of the matter, finding of the learned trial Court is erroneous with regard to issue No. 2 because the plaintiff-respondent was not ready and willing to perform his part of the contract.
19. For issue No. 3, it is argued by learned Counsel appearing on behalf of the defendant-appellant that the trial Court ought to have given a finding that at whose instance document Ex.-A/3 was prepared by the plaintiff's counsel. The defendant's case was that the plaintiff wanted to create a new contract for which he refused and plaintiff stated that it was defendant who got it prepared by Shankar Lal in order to be saved from the capital gain tax. By evidence the appellant- defendant has fully proved that the plaintiff gave this document Ex.-A/3 and he refused to abide by it on 08.01. 1979.
20. With regard to issue No. 4, it is submitted that error has been committed by the learned trial Judge while holding that the plaintiff-respondent would sustain loss of Rs. 15,000/-. As per learned Counsel for the appellant the finding of issue No. 5 is also erroneous, therefore, issue No. 6 which is issue with regard to granting relief also deserves to be quashed because the plaintiff-respondent has not proved his case that he was ready and willing to perform his part of contract, for which, he is entitled for decree of specific performance of contract. In this view of the matter, it is argued that the judgment impugned deserves to be set aside.
21. Learned Counsel appearing on behalf of the defendant-appellant invited my attention towards certain judgments to substantiate his submissions viz.,
(1) : AIR 1950 SC 15
(2) : AIR 1982 SC 20
(3) : AIR 1990 SC 1833
(4) : AIR 1954 SC 345
(5) : AIR 1968 SC 1413
22. While citing this judgments it is submitted that Hon'ble apex Court has held that at the time of deciding suit for specific performance of contract the financial ability of the plaintiff, conduct of the plaintiff and failure to send notice and document to show readiness and willingness to perform his part of contract are required to be assessed. There must be documentary evidence to show that the plaintiff in whose favour the contract was executed was ready and willing to perform his part of the contract, but, the defendant was not ready to perform his part of contract; and, in absence of evidence, no decree for specific performance of contract can be passed, therefore, this appeal may be allowed and judgment impugned may be set aside.
23. Per contra, learned Counsel appearing on behalf of the plaintiff-respondent vehemently argued that contention of appellant-defendant is totally unfounded that he was not ready and willing to perform his part of contract. Further, it is wrong to say that there is no pleading nor any evidence on record to the effect that the plaintiff-respondent was ready and willing to perform his part of the contract, It is pointed out by counsel for the respondent that there is specific pleading in the plaint in para 3, 5 to 10 and there is number of documentary evidence inasmuch as the plaintiff-respondent gave two notices Ex.-4 and Ex.-6 and further telegram on 15.01.1979 and also gave reply by telegram on 31.03.1979 in response to the telegraphic notice of the defendant-appellant; but, the defendant-appellant did not remain present in the office of the Sub Registrar though the plaintiff remained there from 10 A.M. to 5 P.M. and, so also, submitted two applications which are on record as Ex.-8 and Ex.-9 respectively and, further, in Ex.-9 there is specific recital that he (plaintiff) was present in the office of the Sub Registrar along with entire amount of consideration and despite exhibiting application dated 31.03.1979 no question was put to the plaintiff-respondent with regard to contents of Ex.-9, therefore, from the conduct of the appellant-defendant, it is clear that he was not ready to perform his part of contract. It is clear from the record that the plaintiff-respondent paid a sum of Rs. 15,001/- against part performance of contract and, further, paid Rs. 7,000/- and also purchased stamps worth Rs. 8,000/-, therefore, the plaintiff-respondent with regard to contents of Ex.-9, therefore, from the conduct of the appellant it is clear that he was not ready to perform his part of contract. It is clear from the record that the plaintiff-respondent paid a sum of Rs. 15,001/- against part performance of contract and, further paid Rs. 7,000/- and also purchased stamps worth Rs. 8,000/-, therefore, the plaintiff-respondent has proved his case beyond doubt that he was ready and willing to perform his part of contract. Learned trial Judge accordingly decided issue No. 2 in favour of the plaintiff-respondent.
24. Learned Counsel for the plaintiff-respondent vehemently argued that the respondent was always ready and willing to perform his part of contract, therefore, stamps were also purchased on 26.12.1978, 27.12.1978 and 05.01.1979 and plaintiff-respondent gave notice calling upon the defendant-appellant to perform his part of contract as Ex.-4 and Ex.-6 which were neither acknowledged nor replied by the defendant. On the contrary, an attempt was made to cover the lapses and show that he gave notice to the plaintiff for getting the document registered. The notice telegram was, however, instantaneously replied by the plaintiff-respondent and it was informed that he shall remain present in the office of the Sub Registrar on 31.03.1979 but the appellant-defendant did not turn up in the office of the Sub Registrar. Therefore, it is a fit case in which the trial Court has rightly granted decree of specific performance of contract against the defendant-appellant.
25. In support of aforesaid submissions, learned Counsel for the respondents placed reliance upon the following judgments:
(1) : AIR 1980 Rajasthan 212
(2) 1988 (1) RLR 982
(3) 1995 (2) WLC
(4) AIR 1971 SC 1328
(5) : AIR 1996 SC 2510
(6) : (1997) 4 SCC 481
(7) : AIR 1999 SC 3029 and
(8) : AIR 2000 SC 191.
26. While citing these judgments, it is submitted that attempt was made by the defendant-appellant to raise false plea that he could not execute the sale-deed as he did not adequate amount so as to get the property redeemed nor he could repay the loan under the MIGH Scheme, therefore, he was unable to execute the sale- deed. It is also urged that in fact the plaintiff- respondent did not pay the amount. Such type of plea has rightly been rejected by the trial Court and trial Court has rightly allowed the suit filed by the plaintiff- respondent for specific performance of contract. Therefore, it is submitted that this appeal filed by the defendant-appellant may be dismissed with cost.
27. After hearing both the parties and perusing entire record of the case, I have given my thoughtful consideration in the matter.
28. Learned trial Court framed as many as six issues, out of which, issue No. 1 was although decided in favour of the defendant-appellant but it has been held that stamps of Rs. 7,533/- were purchased from the amount paid by the plaintiff but those stamps were purchased by Murlidhar Jagetiya and Murlidhar Jagetiya handed over the said stamps to the appellant-defendant. The defendant-appellant, in appeal, raised the ground that the trial Court while deciding issue No. 1 erred in coming to the conclusion that Shri Nathulal deposited the amount for purchase of stamps and he obtained challan and gave those challan to Murlidhar Jagetiya and stamps were given to Nathulal by Murlidhar Jagetiya; and, thereafter, stamps were given by Nathulal to the defendant. It is argued that the finding of the learned trial Court is erroneous.
29. I have perused the adjudication made by the trial Court with regard to issue No. 1. In my opinion, learned trial Court has not committed any error while giving above finding that stamps were purchased by Murlidhar Jagetiya because in para 4 and 17 of the reply filed by the defendant-appellant himself it has been admitted that stamps were purchased through Murlidhar Jagetiya and upon the stamps it is specifically stated by the stamp vendor gLrs eqjyh/kj; meaning thereby, assertion made upon the stamp itself speaks that stamps were purchased by Murlidhar Jagetiya. Therefore, finding arrived at by the learned trial Court does not require any interference because the finding is based upon the facts pleaded in the suit and with cogent reasons.
30. With regard to issue No. 2, whether the plaintiff was ready and willing to perform his part of contract vide Ex.-1 and defendant did not perform his part of contract thereby committing breach of the contract.
31. I have assessed the evidence on record while considering the argument advanced by learned Counsel for the defendant-appellant. From the facts and evidence, it emerges that admittedly Ex.-1 agreement to sale was arrived at in between late Lajpat Rai and late Jorawar Singh by which late Lajpat Rai agreed to sell his house which is situated in Singhu Nagar Colony, Bhilwara and name of the house is Alok Bhawan. Said bungalow is having two floors - one ground floor and second the first floor.
32. In the agreement Ex.-1, late Lajpat Rai was in need of money so he was interested to sell his bungalow and late Jorawar Singh was ready and willing to purchase the said bungalow. Therefore, upon the terms and conditions mentioned in the agreement Ex.- P/1 it was agreed by late Lajpat Rai, original defendant- appellant that he is willing to sell the said house for consideration of Rs. 2,20,001/-. The terms and conditions of agreement Ex.-P/1 are as follows:
1- ;g fd mijksDr of.kZr dqfy;k tk;nkn izFke i{k f}rh; i{k dks fcy ,ot :i;s 2]20]001@& nks yk[k chl gtkj ,d :- esa cspus dh izfrKk djrk gS ftls f}rh; i{k us Hkh Lohdkj dj fy;k gS A
2- ;g fd mijksDr tk;nkn dh izFke eafty dk lkbV Iyku CY;w fizUV] izFke i{k us vius gLrk{kj dj f}rh; i{k dks ns fn;k gS tks Hkh bl bdjkj dk ,d vax gS A izFke eafty dh Hkkafr gh nwljh eafty ij ,d dejs dks NksMdj fuekZ.k dejks dk cuk gqvk gSA bl izdkj mijksDr jkf'k isVs izFke i{k us izFke o f}rh; nksusk eaftys f}rh; i{k dks cspus dk bdjkj fd;k gS A caxys dk dqy fuekZ.k 95 QhV iwoZ if'pe o mRrj nf{k.k 58 QhV esa fd;k gqvk gS A
3- ;g fd fo; dh mijksDr jkf'k tks nksusk i{kksa ds e/; r; gqbZ gS mlds va'k Hkqxrku isVs f}rh; i{k us 15001@& :- iUnzg gtkj ,d :- izFke Ik{k dks vkt udn vnk dj fn;s gS tks izFke i{k us izkIr dj bu :i;ksa dh vyx ls jlhn f}rh; d{k ds gd esa fy[kdj ns nh gS cdk;k fo; jkf'k izFke i{k fo; i= ds iathdj.k ds le; f}rh; i{k ls :c: lc jftLVkj izkIr dj ysxk A
4- ;g fd bl caxys dh nwljh eafty dk dqfy;k fgLlk vHkh Hkh vklu nkl flU/kh ds ikl fcy ,ot :i;s 35000@& esa jgu fcy dCt gS ftlesa Jh vklu nkl Loa; jg jgs gS vkSj dqN fgLlk lsUVy cSad vkWQ bafM;k ds eSustj lk dks fdjk;s ns j[kk gS A blh Hkkafr izFke eafty Jh la;qDr funs'kd ftyk m|ksx HkhyokM+k dks fcy ,ot :i;s 1475@& izfrekg fdjk;s ij ns j[kh gS tks m|ksx foHkkx ds dCts esa gS A
5- ;g fd f}rh; eafty dk [kkyh dCtk jgu ls ckxqtk'r djk dj izFke i{k f}rh; Ik{k dks lqiqnZ djsxk ftlesa izFke i{k dks dqN le; yx ldrk gS A vr% izFke i{k loZizFke igyh eafty ds fo; i= dh jftLVh f}rh; i{k ds i{k esa djk;sxk vkSj ysVj vkWQ ,VksuZesUV ftyk m|ksx foHkkx HkhyokMk dks fy[k dj f}rh; i{k dks ys.M yksMZ dcwy djus o vk;Unk fdjk;k f}rh; Ik{k dks vnk djus dks lwfpr dj nsxk A
6- ;g fd izFke eafty ds fo; i= dh jftLVjh djkrs le; f}rh; Ik{k 95000@& ipkuos gtkj :- izFke Ik{k dks vnk djsxk ;g jkf'k vnk gksus dh lwjr esa gh izFke i{k f}rh; i{k ds gd esa izFke eafty dk fo; i= fy[kdj jftLVjh djk nsxk A
7- ;g fd nwljh eafty ds fo; i= dh jftLVjh vkt ls rhu ekg ds vUnj vUnj f}rh; Ik{k cdk;k fo; jkf'k dqfy;k vnk djk ysxk A rc rd izFke Ik{k nwljh eafty dks jgu dh jkf'k Jh vklu nkl dks vnk dj jgu ls ckxqtk'r djk ysxk ,oa iwjh nwljh eafty dk [kkyh dCtk izkIr dj oDr fo; i= f}rh; i{k dks [kkyh dCtk laHkyk nsxk A
8- ;g fd mijksDr dqfy;k tk;nkn ds fo; ij izFke Ik{k ftl Hkkafr Hkh f}rh; i{k mldh bPNkuqlkj ftrus fgLlksa esa o ftu O;fDr;ksa ds uke djokuk pkgsxk mUgha ds uke mrus gh fgLlksa esa dj nsxk blesa izFke Ik{k dHkh dksbZ ,srjkt o ugh djsxk A
9- ;g fd izFke Ik{k tk;nkn ds fo; i= fy[kus ds iwoZ gkml VSDl] bUde VSDl foHkkx dh nsunkjh] gkmflax foHkkx ds _.k vkfn dh vnk;xh dj dqfy;k tk;nkn lHkh dj] _.k Hkkj o cks>s ls ikd o lkQ&ckxqtk;'r dj f}rh; Ik{k dks ;k muds bfPNr O;fDr dks eqUrfdy djsxk A
10- ;g fd mijksDr tk;nkn ds iwoZ dh rjQ Jh bUnzizdk'k dh tk;nkn gS A ftl rjQ bl tk;nkn dh izFke o f}rh; eafty esa njokts o f[kMfd;ka ekStwn gS tks izFke i{k fnoky [kM+h dj cUn dj nsxk o bl tk;nkn esa f}rh; Ik{k dk dksbZ vkokxeu gd gdwd ugha jgsxk ,oa iwoZ dh dqy fnoky f}rh; i{k dh feyfd;r gksxh A fo; i= laca/kh LVkEi ,oa jftLVjh [kpkZ f}rh; Ik{k ds ftEes gksxk A
33. Bare perusal of the above terms and conditions consideration of Rs. 2,20,001/-; and, out of the said amount, Rs. 15,001/- were paid by purchaser late Jorawar Singh, original plaintiff-respondent to late Lajpat Roy the day on which the agreement was written and defendant gave receipt of the said amount. Further, it was agreed that rest of the amount will be paid before the Sub Registrar at the time of executing the sale deed. In condition No. 4 of the agreement it is specifically stated that in the second floor of the house one Asan Das is living and the said floor is mortgaged with him in lieu of Rs. 35,000/- received by late Lajpat Rai from Asan Das. It was also observed in the agreement that in some part of the building, manager of the Central Bank of India is tenant. Likewise, first floor is in possession of the Joint Director, District Industries, Bhilwara, being tenant for Rs. 1,457/- per month.
34. In para 5 of the agreement, it is specifically stated that the vacant possession of the second floor will be handed over by owner of the property late Lajpat Rai after getting the same vacated, in which, some time can be consumed and first of all the first party will execute the sale-deed of the first floor in favour of purchaser late Jorawar Singh and letter of attornment will be written by him to the District Industrial Officer, Bhilwara for obtaining transference as landlord and in future the department will give rent to the second party purchaser.
35. In para 6 of the agreement, it was agreed that at the time of execution of the sale-deed in respect of the first floor Rs. 95,000/- will be paid by the purchaser second-party to the first party and upon payment of the said amount the first party will execute the sale-deed in favour of the second party. In condition No. 7 of the agreement, it was specifically observed that the sale- deed for the second floor will be got executed upon payment of the rest of the amount within three months by the second party. Till then, the second floor which is mortgaged with Asandas will be got redeemed after making payment of the amount for which the first floor was mortgaged with Asandas and, after taking the vacant possession from him at the time of execution of the sale-deed of the second floor, the possession will be handed over to the second party purchaser. Further, it was agreed that as per the agreement the purchaser will be at liberty to purchase the building as per his desire in the name of different persons and different parts and no objection shall be raised by the first party seller. It is also further observed that all liability of house-tax, income tax and loan encumbrance in respect of the property etc. shall be borne by the owner of the property who is first party and will own all the liabilities and the said agreement was executed on 03.11.1978 and Rs. 15,001/- were paid on that date and receipt Ex.-2 was given for the said amount out of total amount of Rs. 2,20,001/-.
36. The plaintiff-respondent filed the civil suit on 03.07.1979 for specific performance of agreement and upon perusal of the suit it comes out that as per the plaintiff-respondent, after 01.11.1978, number of times he made request for executing the sale-deed of the first floor and while giving false assurances upon surety of his brother, the defendant-appellant caused him to pay an amount of Rs. 8,000/- to Murlidhar Jagetiya for purchase of stams. On 30.12.1978 Rs. 7,000/- were also taken while giving false assurance by defendant- appellant. Thereafter, time and again, he made request for executing the sale-deed for the first floor and made a prayer that he is ready and willing to pay the amount as agreed in the agreement but the original defendant-appellant did not execute the sale-deed in his favour. Thereafter, on 12.01.1979, a registered notice was given for executing the sale-deed within three days and said notice was received by him on 16.01.1979 but while flouting the terms and conditions of the agreement the sale deed was not executed by him. Thereafter, one telegram was given by the plaintiff on 15.01.1979 to the defendant and defendant replied that though he shall perform his part of the contract as per agreement executed on 03.11.1978 while executing the sale deed in his favour because three months time was given in the agreement for executing the sale-deed; but, somehow, the defendant-appellant refused to execute the sale-deed in his favour. So also, the defendant did not make any efforts to get vacated the second floor from Asandas nor he has paid off the amounts of loan of MIGH.
37. On 15.02.1979, the plaintiff-respondent gave a notice to the defendant-appellant for executing the sale deed within three days but, in violation of the terms and conditions, he did not execute the sale-deed and violated the agreement. Further, it is stated by the plaintiff-respondent that so as to cover his default and with bad intention the defendant gave telegram to the plaintiff-respondent on 30.03.1979 that he will execute the sale deed on 31.03.1979 and plaintiff gave reply to the telegram on the same day that he will remain present in the office of the Sub Registrar. The plaintiff's reply was received by the defendant-appellant on 30.03.1979 and plaintiff remained present on 31.03.1979 in the office of the Sub Registrar and filed application before the Sub Registrar to prove his presence in the office but the defendant did not turn up in the office of the Sub Registrar though the plaintiff remained in the office of the Sub Registrar from 10 A.M. to 5 P.M. with money and stamps. Therefore, on the above fact, the suit for specific performance of contract was filed on the ground that plaintiff was ready and willing to perform his part of the contract but the defendant-appellant contravened the terms and conditions of the agreement and refused to execute the sale-deed, therefore, by way of filing the suit it was prayed that decree against the defendant may be passed and defendant may be directed to execute the sale-deed in pursuance of the agreement dated 03.11.1978. Further, it was stated that he was ready and willing to perform his part of the contract, therefore, defendant may be directed to execute the sale-deed and give him vacant possession of the property.
38. In the alternative, it was prayed that if the Court comes to the conclusion that no decree for execution of the agreement can be passed, then, Rs. 30,001/- with interest at the rate of Re.1/- Rs. 20,000/- may be passed against the defendant.
39. The defendant-appellant filed his reply and refuted all the allegations levelled in the plaint and came out with the plea that allegations are totally false and stamps were purchased by the defendant himself and a request was made by the defendant to the plaintiff to pay amount of Rs. 95,000/- and, upon payment of the said amount, it was made clear that he will execute the sale-deed for different parts and in different names as desired by him; but, the plaintiff did not pay Rs95,000/- to him and raised so many pretexts that he has not been able to manage the amount; meaning thereby, without any payment of amount of Rs. 95,000/- it was not possible for the defendant to get the property redeemed because admittedly mortgagee Asandas was in possession of the first floor of the property and on 08.01.1979 he himself showed his inability to perform his part of contract as per terms and conditions of the agreement. The plaintiff himself breached the conditions of the agreement; and, thereafter, he has started to send notices to the defendant though he was not having the amount to pay and framed concocted story that he was ready and willing to execute the sale-deed. The stamps so purchased were not taken by him nor he has paid any amount for purchasing the stamps but in the presence of Asandas on 30.03.1979 he said that the plaintiff may remain present in the Tehsil office and he will be coming with duly filled in challan for purchasing the stamps. On 30.03.1979 and 31.03.1979 he asked the plaintiff but the plaintiff did not turn up and, thereafter, a false suit was filed by him. The plaintiff-respondent was not ready and willing to perform his part of contract nor he was having money to execute the sale-deed.
40. In para 23 of the reply, the defendant-appellant came with the plea that on 08.01.1979 plaintiff- respondent came with draft of new agreement Ex.-A/3 prepared by his counsel who wanted to create a new contract, for which, he refused and the plaintiff, however, stated that it was the defendant who got it prepared by Shanker Lal in order to avoid capital gain tax etc. The appellant-defendant refused to abide by it and on 08.01.1979 the plaintiff-respondent was not ready and willing to perform his part of contract under agreement Ex.-A/1.
41. In this case, admittedly, it is not in dispute that agreement Ex.-A/1 was executed by the plaintiff- respondent and defendant-appellant both and, as per law, both the parties were required to abide by the terms and conditions enumerated in the agreement. Learned trial Court while giving the finding has not accepted the plea of the defendant that the plaintiff- purchaser was not ready and willing to perform his part of the contract. The finding of the learned trial Court is based upon the reason that time and again plaintiff- respondent made his efforts to get executed the agreement but defendant did not show any willingness to perform his part of contract and with ill intention sent a notice on 30.03.1979 that he is ready to execute sale- deed on 31.03.1979. In reply to the notice of the defendant-appellant it was informed by the plaintiff that he is ready to pay the entire amount and will remain present in the office of the Sub Registrar for executing the sale-deed. Both the parties are not disputing the telegram Ex.-A/1A and Ex.-A/2 which were sent by the defendant late Lajpat Rai to plaintiff Jorawar Singh on 30.03.1979 as under:
Ex.-A/ 1A
REF YOU TEL AVAILABLE 31ST MARCH TEHSIL FOR EXECUTING SALE DEEDS FROM TEN TO FIVE PM STOP BRING ENTIRE SALE PRISE OF ENTIRE PROPERTY FAILING WHICH YOU WILL BE RESPONSIBLE FOR BREACH
- LAJPATROY
Ex.-A/2
Requested many times to get Sale deed Executed as per agriment But you failed (.) Get Sale deed executed By 31st March against full payment failing which Earnest money liable forfeited
- LAJPAT RAI
42. In response to the above telegram, the plaintiff gave his reply by telegram that he will remain present with money and stamps for executing the sale-deed. As per above telegram, plaintiff Jorawar Singh remained present in the office of the Sub Registrar and filed an application Ex.-8 which is certified copy of the certificate obtained by him from the office of the Sub Registrar and second application was filed by him at 5 P.M. on the same day which is Ex.-9 which is certified copy of the application obtained from the office of the Sub Registrar. Ex.-9 is as under:
lsok esa]Jheku~ lc jftLVkj lkgc HkhyokMkizkFkhZJh tksjkoj flag iq= mxjflag yksk fuoklh HkhyokM+kegksn; th]
lfou; fuosnu gS fd vkt fnukad 31 ekpZ 79 dks 10 cts lqcg izkFkhZ us ,d izkFkZuk Ik= Loa; mifLFkr gksdj is'k fd;k fd izkFkhZ us tfj;s bdjkjukek fnukad 3@11@78 yktirjk; lsB dk edku vkyksd Hkou okds flU/kq uxj HkhyokM+k [kjhnus dk bdjkj fd;k ftlds vuqlkj izkFkhZ vkids dk;kZy; esa vius Ik{k esa fo; i= fy[kokus dks mifLFkr gqok izkFkhZ fo; dh dqfy;k jkf'k vius lkFk ysdj vkids dk;kZy; esa 10 cts lqcg mifLFkr gks x;k fujUrj mifLFkr jgdj fosrk yktirjk; dh bUrtkj djrk jgk ysfdu 'kke 5 ctus okys gS vkSj yktirjk; lqcg 10 cts ls vHkh rd fo; jkf'k izkIr djus ,oa fo; i= fy[k jftLVh djkus vkids dk;kZy; esa iwoZlwpuk vuqlkj mifLFkr ugh gqok gSa A
vr% izkFkhZ vkt 'kke dks 5 cts vkidk dk;kZy; NksM+us ds iwoZ ;g izkFkZuk i= is'k dj fuosnu djrk gS fd bl ij fnukad o le; vafdr Qjek vfHkys[k ij j[kok;k tkos A
fnukad% 31 ekpZ 79 lka; 5 cts
izkFkhZ
tksjkojflag yks k
43. Upon perusal of Ex.-P/8 and Ex.-P/9, it is proved that the plaintiff remained present in the office of the Sub Registrar, Bhilwara as per instruction given by the defendant. In my opinion, above facts are sufficient to prove that as per telegram given by the defendant late Lajpat Rai, plaintiff late Jorawar Singh was present with money for the purpose of executing the sale-deed by the defendant-appellant. But, he did not turn up inspite of sending telegram by him to remain present in the office of the Sub Registrar, therefore, nothing is required to be seen except these documents because these documents are sufficient to ascertain that the plaintiff was ready and willing to perform his part of contract and he remained present in the office of the Sub Registrar as directed by the defendant. Therefore, even if the defendant-appellant has tried to make out a case while citing large number of judgments that the plaintiff-respondent was not ready and willing to perform his part of contract but the fact pleaded by the defendant in his reply that for performing his part of contract two notices were given on 30.03.1979 but to refute the said fact the plaintiff has proved by evidence that he remained present in the office of the Sub Registrar on 31.03.1979 but the defendant did not turn up. The learned trial Court has considered all aspects of the matter and found that these documents were sufficient to accept the fact that on 31.03.1979 the plaintiff-respondent was ready and willing to perform his part of contract. This Court, however, cannot lose sight of the fact that in pursuance of the agreement Ex.-1 by which the building was agreed to be sold for a consideration of Rs. 2,20,001/-, in fact, only Rs. 15,000/- were paid by the plaintiff-respondent.
44. In this view of the matter, after considering all aspects of the matter and judgments cited by the counsel for the appellant, no error has been found in the finding of the learned trial Court while deciding issue No. 2 in favour of the plaintiff-respondent.
45. With regard to issue No. 3, once upon two notices sent through telegram on 30.03.1979 by the defendant late Lajpat Roy directing plaintiff to remain present in the Tehsil office in pursuance of agreement Ex.-1 and the plaintiff remained present in compliance of notice in the office of the Sub Registrar; then, facts pleaded with regard to preparation of another agreement earlier loses its sanctity even if draft of another agreement was got prepared by the plaintiff because the same was not executed, therefore, it does not affect the controversy. In this view of the matter, there is no error in the finding arrived at by the trial Court while adjudicating issue No. 3.
46. With regard to issue No. 4, I have perused the finding of the learned trial Judge. The finding with regard to assessment made by the trial Court does not require any interference because this issue was framed by the learned trial Court for the reason that an alternative prayer was made by the plaintiff-respondent that if sale is not executed, then, loss suffered by him may be ordered to be paid by the defendant and for the same decree may be passed. Therefore, the finding on issue No. 4 does not require any interference.
47. With regard to issue No. 5, it is obvious that the defendant-appellant has not raised any ground with regard to adjudication and finding made by the trial for issue No. 5 except the assertion made that the learned District Judge has erred in law to decide issue No. 5 and no argument to assail the finding of the learned trial Court on issue No. 5 has been advanced, therefore, there is no question to interfere in the finding given by the trial Court for issue No. 5.
48. Learned trial Court while deciding issue No. 6 for granting relief has specifically observed that the plaintiff-respondent late Jorawar Singh was ready and willing to perform his part of contract as per terms and conditions of agreement Ex.-1 but the defendant- appellant has breached the terms and conditions of the contract and while making the above adjudication held that stamp of Rs. 7,533/- were also lying with the defendant and, in all, Rs. 22,000/- were paid by the plaintiff late Jorawar Singh to defendant late Lajpat Roy, therefore, the rest of the amount of Rs. 1,90,467 is required to be paid by the plaintiff and, out of this amount, the defendant is to redeem the property from mortgagee Asan Das and, so also, pay off other loan; and, finally passed decree in favour of the plaintiff- respondent, whereby, the plaintiff was directed to deposit Rs. 1,90,467/- in the Court and upon depositing the said amount in the Court within two months, the defendant shall execute sale-deed in favour of the plaintiff and give vacant possession of the house while redeeming the said property from Asan Das and after making payment of all loans.
49. I have examined the adjudication made by the trial Court with regard to issue No. 6 which is the relief clause. To decide the issue, I have perused Section 20 of the Specific Relief Act, 1963.
50. According to Section 20 of the Specific Relief Act, 1963, discretion vests in the Court for decreeing suit for specific performance. As per Section 20, jurisdiction is left with the Court that a decree for specific performance of agreement to sale the immovable property cannot be claimed as a matter of right. The jurisdiction to decree suit for specific performance under Section 20 of the Specific Relief Act is discretionary and not mandatory and Court is not bound to grant such relief merely because it is lawful to do so. But, the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of Section 20 provides instances in respect of which the Court may properly exercise discretion not to decree specific performance, which are as follows:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
51. While considering the provisions of Section 20 of the Specific Relief Act, 1963, in the case of Sardar Singh v. Krishna Devi reported in : (1994) 4 SCC 18, Hon'ble Supreme Court laid down the principle as follows:
14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.
52. Upon perusal of the above adjudication made by the Supreme Court, the circumstances in each case and conduct of the parties and respective interest under the contract is required to be seen. In the present case, after perusing the entire record, so also, adjudication made by the trial Court, following facts require consideration for deciding issue No. 6 for granting relief in this case:
(A) Admittedly both plaintiff and respondent have died during the pendency of the litigation. Defendant- appellant Lajpat Roy died on 13.10.2006 and, after his death his wife Smt. Santosh, sons Rajeev, Sanjeev and Manish, and daughters Jyotsana and Anjana were taken on record vide order dated 15.03.2007. Similarly, plaintiff-respondent Jorawar Singh died on 10.07.1998 and his legal heirs, Smt. Bidami Bai, Gulab Singh Lodha, Bhanwar Singh Lodha, Chandrakanta and Smt. Channa Devi, grand-children Jagdeep Lodha, Sarita Lodha, Shashi and Shilpi were taken on record vide order dated 17.03.1999; meaning thereby, both the original plaintiff and defendant in the suit for specific performance have already died.
(B) Admittedly, amount of Rs. 15,001/- was paid on the day on which agreement Ex.- 1 was written and, thereafter, Rs. 7,000/- were paid subsequently; meaning thereby, in cash, out of Rs. 2,20,001/- which was consideration for sale only Rs. 22,000/- were paid and, further, Rs. 7,533/- were spent to purchase the stamps; and, upon perusal of the entire record, it emerges that second floor of the property in question is still in possession of one Asan Das as mortgagee and in some part of the proper, the Industries Department is running its office. Likewise, there is no evidence on record that other liability of loan has been paid off.
(C) After death of both the original parties, their widows and other family members - major or minor, are in existence.
(D) It is admitted position of the case that while filing the suit, it was specifically prayed in prayer Clause (4) as follows:4& fodYi esa vtZ gS fd ;fn fdlh dkuwuh vM+pu ls ;k vU; dkj.k ls U;k;ky; rdfey ek;nk dh fMh nsuk mfpr ugh le>s rkd 30]001@& :i;k v{kjs rhl gtkj ,d gtkj :Ik;k e; 1@& :i;k lSdMk C;kt crkSj gtkZ ,oe~ oknh dks vlqfo/kk ,oe~ ijs'kkuh gqbZ mldk gtkZ tks oknh :i;k 20]000@& dk;e djrk gS izfroknh ls fnykk; tkos A
53. While considering all the above aspects of the matter, in my opinion, in the above facts and circumstances of the case, discretion left with the Court under Section 20 of the Specific Relief Act, 1963 is required to be exercised and, instead of granting decree for execution of the sale, I deem it just and proper to grant relief as prayed for by the original plaintiff in prayer Clause (4) because the circumstances emerging from the facts itself speak that at the time of agreement to sell the major part of the property was not in possession of the defendant- appellant Lajpat Roy. The second floor was in possession of Asan Das Sindhi as mortgagee and it was to be redeemed by way of making payment of the outstanding. For redemption money was required; but, admittedly, due to shortage of money, the agreement to sale was executed by late Lajpat Roy in favour of the defendant; meaning thereby, if still the decree for executing the sale-deed is maintained, then, obviously the mortgagee will be entitled for not only the principal amount but interest also and plaintiff will only pay the amount of Rs. 1,90,467/-; meaning thereby, for redeeming the property the legal heirs of the defendant- appellant are required to spend more than the amount which is deposited by the plaintiff in the Court as per order passed by the trial Court. Therefore, as per Clause (b) of Sub-section (2) of Section 20, for performance of the contract, the legal successors of the defendant-appellant will suffer hardship whereas for its non-performance no such hardship will be suffered by the legal successors of late plaintiff Jorawar Singh. More so, they can be compensated by granting interest and compensation upon the cash consideration paid to the defendant-appellant late Lajpat Roy.
54. In this view of the matter, while exercising jurisdiction left under Clause (b) of Sub-section (2) of Section 20 of the Specific Relief Act, 1963, I am of the opinion that the relief granted by the trial Court for executing the sale-deed in favour of the plaintiff- respondent late Jorawar Singh by defendant-appellant late Lajpat Roy cannot be maintained. Therefore, while deciding issue No. 6, it is ordered that even if the plaintiff-respondent has proved that he was ready and willing to execute his part of the performance as per agreement, he was not entitled for decree of executing sale-deed in his favour while depositing Rs. 1,90,467/- in the Court and to get vacant possession from the defendant after redeeming the property from Asan Das and after making payment of loan.
55. Consequently, this appeal is partly allowed. The decree dated 04.02.1986 passed by the learned Addl. District Judge, Bhilwara in Civil Case No. 1/981 (36/79) is hereby modified. The order for executing the sale- deed and to give vacant possession after redeeming the property from mortgagee Asan Das in favour of the plaintiff-respondent is quashed and set aside; and, instead, relief prayed for in prayer Clause (4) of the plaint filed by the plaintiff-respondent is hereby ordered to be allowed. Accordingly, the legal heirs of appellant- defendant late Lajpat Roy are directed to return amount of Rs. 29,534/- (Rupees twenty-nine thousand five hundred thirty-four) along with interest at the rate of 6% per annum from the date of execution of the agreement to sale till today and pay compensation of Rs. 30,000/- (Rupees thirty thousand) within a period of three months from today. Further, if any amount has been deposited in pursuance of the judgment impugned by the plaintiff-respondent in Court, then, it shall be returned to the legal heirs of deceased plaintiff- respondent by the Court within a period of one month from the date of receipt of certified copy of this judgment.