| SooperKanoon Citation | sooperkanoon.com/130733 |
| Subject | ;Contract |
| Court | Guwahati High Court |
| Decided On | Jan-05-2006 |
| Judge | A.H. Saikia, J. |
| Appellant | Md. Tamrul Haque Choudhury |
| Respondent | Md. Monia Laskar and anr. |
| Disposition | Appeal dismissed |
A.H. Saikia, J.
1. Heard Mr. N. Dhar, learned Counsel for the appellant and Dr. B. Ahmed, learned Counsel for the Respondents.
This first appeal witnesses a challenge of the judgment and decree dated 29-7-2000 rendered by the learned Civil Judge, (Sr. Division) No. 2 Cachar, Silchar in Title Suit No. 99 of 1997 by which the suit instituted by the plaintiffs/respondents seeking specific performance was decreed against the defendant/appellant.
2. The facts in a short compass as emerged from the pleadings exchanged by and between the parties may be recapitulated for proper resolution of this first appeal. The appellant was the absolute owner and possessor of the suit land and having faced with urgent need of cash, he approached the respondents with an offer to sell the suit land for a consideration of Rs. 64,000/- and on acceptance of such offer, a registered agreement was executed on 21-5-97 when an amount of Rs. 30,000/- was also paid to the appellant as an advance. It was reiterated in the agreement that the balance amount of Rs. 34,000/- would be paid by the respondents to the appellant within a time-frame of four months from the date of execution of the agreement so mentioned hereinabove and on such payment the appellant/defendant should execute a registered sale deed in favour of the respondents. Thereafter, both the parties approached the competent authority seeking permission for such sale and purchase and accordingly the competent authority i.e. S.D.O., Lakhipur granted permission vide order dated 11-6-97 for such sale. On getting such permission from the authority, the respondents approached the appellant for execution and registration of the sale deed with an offer to pay the balance amount of Rs. 34,000/-. However, despite repeated request on several occasions made by the respondents. The appellant failed to execute the sale deed in terms of the agreement. Such events impelled the respondents to move the Court by Tiling related Title Suit i.e. T. S. No. 99/97 on 20-9-97 seeking specific performance of the contract so made between the parties in terms of the agreement dated 21-5-97.
3. The appellant contested the suit by filing written statement denying all those allegations and averments made in the plaint and stated inter alia that there was no cause of action; the suit was barred by limitation; suit was bad under the Specific Relief Act, 1963; suit was bad for estoppels, waiver and suit was not tenable in the present form and manner. The case projected by the defendant-appellant in his written statement was that though he agreed to sale the suit land on an agreed amount of Rs. 64,000/- for which the agreement of sale was executed on 21-5-97 on payment of Rs. 30,000/- as an advance out of that agreed consideration aforesaid, the respondents failed to make payment of the remaining amount of Rs. 34,000/- within the specified peripd of four months from the date of execution of the agreement of sale in terms of the said agreement. There was no willingness on the part of the respondents at any point of time for such payment though on the other hand he was ready to execute the sale deed immediately on receipt of the balance amount. Even the appellant of his own made request to the respondents for making such payment and to get the registered saie deed on being executed by him. His case was also that he acted all along bona fide as permission for sale was obtained at his behest and accordingly the competent authority by order dated 11-6-97 granted such permission. Immediately after such permission, the appellant requested the plaintiff/respondent No. 1 to pay the balance amount so that the sale deed could be executed and registered. However, he in turn informed him that he had no money and he would get the sale deed executed only when the plaintiff/respondent No. 2 would come and give him the required money. They were, therefore, not entitled to get a decree for specific performance.
4. On consideration of the pleadings of the contesting parties and upon hearing the learned Counsel for the parties, the trial Court framed as many as seven issues which may be noticed as under:
1) Is there any cause of action for filing this suit?
2) Is the suit barred by limitation?
3) Is the suit maintainable in its present form?
4) Is the suit barred by estoppel, waiver and acquiescence?
5) Whether the suit is bad under the provisions of Specific Relief Act?
6) Whether the plaintiffs tendered the balance amount to the defendant as alleged in the plaint and whether the plaintiff was ready and willing to get the Kabala executed by the defendant in time?
7) Whether the plaintiff is entitled to any relief as prayed for?
5. The respondents, during the trial, examined as many as four witnesses including themselves and proved two documents when the appellant adduced two witnesses including himself. All those witnesses were also cross-examined. The learned trial Court on proper appreciation of the material evidence on records as well as the documents so exhibited before him, decided all the issues in favour of the plaintiffs and came to the conclusion that the plaintiffs were entitled to relief as prayed for and suit was consequently decreed in favour of the plaintiffs holding that they were entitled to get the sale deed executed and registered by and between the parties on receipt of balance amount Rs. 34,000/- by the defendant.
6. On arriving at the findings aforesaid, the learned Judge considered the testimony of all the witnesses and the pleadings of the rival parties and decided all the issues against the appellant. Especially in determining issue No. 6 as already noted above, the Court, after extensively dealing with the evidence of the important witnesses namely P.W.-l plaintiff No. 1, P.W-4, plaintiff No. 2 and D. W-1, the sole appellant, categorically found that the plaintiffs tendered the balance amount to the defendant and they could also prove their case of their willingness and readiness to get the sale deed executed and registered on payment of balance amount for such execution of the sale deed in terms of the agreement and thereby to perform their part on their contract.
7. Mr. Dhar, learned Counsel for the defendant/appellant has explicitly argued that the learned trial Court took a complete erroneous view in decreeing the suit for specific performance. According to him, in a suit for specific performance under the Specific Relief Act, 1963 (for short 'the Act'), the Court needs to inspect the pleadings of the parties so as to find out specific and precise pleadings seeking such relief of specific performance. In the instant case, the pleadings of the parties specifically the plaint did not disclose any such specifications and details to support the plaintiffs' case. The learned Counsel has invited attention of this Court to the paragraphs 3 and 4 of the plaint which, for convenience sake, may be extracted as under:
3. That after the execution of the deed of agreement and the subsequent receipt of SDO's permission to sell the said land, the plaintiffs have repeatedly asked the defdt. to accept the remaining Rs. 34,000/- from them and execute the deed of sale of land, the defdt. has neither accepted the money nor executed the deed of sale of land. He also not handed over the possession of the suit land to the pltfs.
4. That the plaintiffs are always ready to pay the defdt. the remaining amount of Rs. 34,000/- and get the sale deed executed in favour of them and also to get the khas possession of the scheduled land.
8. He has also drawn attention of this Court to the written statement filed on behalf of the appellant particularly to the paragraphs 7, 8 and 12. Relying on the pleadings as noticed hereinabove, the learned Counsel appearing for the appellant has tried to impress upon this Court that no specific case was made out for specific performance so as to allow the Court to grant the reliefs as prayer for in the instant case. He has also relied upon the deposition of the witnesses mainly P.Ws. 1 and 4 and stated that the testimony of these witnesses were categorical to the extent that the respondents approached the appellant for such execution of the sale deed without indicating any specific date and that the sale deed needed to be executed first then only payment would be made. Under such circumstances, according to him, the respondents were not at all willing and ready for performing their part in terms of the contract rather it was the appellant who approached them requesting to make the payment of the amount remained unpaid in order to enable him to execute a registered sale deed in their favour. Reliances have been placed on the various authorities and those are;
(1) K. S. Vidyanadam and Ors. v. Vairavan reported in : AIR1997SC1751 and : AIR1997SC1751 :
(2) Md. Mohar Ali v. Md. Mamud Ali and Ors. reported in : and
(3) Shyam Sunder Chowkhani and Ors. v. Kajal Kanti Biswas and Ors. reported in 1999 (1) GLT 19 : .
9. In Vidyanadam's case : AIR1997SC1751 (supra) a question was raised to the effect that as to whether price rise could be taken as a ground for denying the specific performance when the parties prescribed time limit for taking necessary steps and to what extent discretionary power of the Court could be exercised bearing in mind the above time-frame. The Apex Court, accepted this question in affirmative, in paragraph 11 held that the Court could not be oblivious to the reality arid the reality was constant and continuous rise in the values of urban properties-fuelled by large-scale migration of people from rural areas to urban centers and by inflation. However, when the parties prescribed time-limit, the Court while exercising its discretion, should bear in mind that it must have some significance and that the said time-limit cannot be ignored altogether on the ground that time had not been made the essence of the contract relating to immovable properties. In the said case, the plaintiff had agreed to pay balance consideration, purchase the stamp paper and asked for execution of the sale and delivery of possession within six months. He did nothing of the sort. The agreement expressly provided that if the plaintiff failed in performing his part of the contract, the defendants were entitled to forfeit the earnest money of Rs. 5000/- paid by the plaintiff and that if the defendants failed to perform their part of the contract, they were liable to pay double the said amount. Except paying the small amount of Rs. 5000 (as against the total consideration of Rs. 60,000), the plaintiff did nothing until he issued the suit notice 2 years after the agreement. Eventually the Court came to the conclusion that it was a case of total inaction on the part of the plaintiff as he failed to comply with the terms of the agreement.
10. In Mohar Ali's case (supra), this Court relying on a plethora of decisions of the Apex Court, referring especially to a case of Abdul Khader Rowther v. P.K. Sara Bai reported in : 1989(43)ELT797(SC) and Vidyanadam's case : AIR1997SC1751 (supra), in paras 9 and 11 held that the plaintiff in his pleadings must specifically plead that he had approached the defendant to perform agreement but the latter had not done so and that plaintiff was always ready and willing to specifically perform his part of agreement.
11. In Shyam Sundar Chowkhani's case AIR 1991 Gau 101 (supra) this Court while interpreting Section 20 of the Act, in paragraph 23 ruled that under Section 20 the discretion of the Court was not being arbitrary in nature but one to be governed by the rule of equity. The Court was to assign reasons for its action so that one can assess the soundness of the discretion. The relief being an equitable relief, the plaintiff must come to the Court with clean hands. Law is that a specific performance cannot be decreed if part of the contract is susceptible of specific enforcement. In the said case, the Court found that the so-called agreement for sale was absolutely vague one because there was no mention of the place where the land was situated though there was no dispute amongst the parties with regard to the identity of the land.
12. Taking the ratio of the above referred cases into account and applying the same in the instant case in support of the appellant, this Court is of the view that the facts and circumstances under which the above proposition of law has been laid down, are completely different with the facts and circumstances so emerged in this present case. Rather the ratio of those cited cases would help the respondents' case.
13. Dr. Ahmed, supporting the impugned judgment and decree, has contended that the impugned judgment and decree was passed on proper consideration and appreciation of the testimony of the witnesses as well as after thorough examination of the pleadings of the parties. According to him, in paragraphs 3 and 4 of the plaint as already mentioned, the plaintiffs categorically made out a case of specific performance as they averred that they were all along willing and ready to make the payment and it was defendant who did not accept the amount and failed to make any action for execution of the sale deed and they also specifically stated that they approached the defendant repeatedly on several occasions. The pleadings so mentioned were also supported by adducing the evidence. According to him, PW-1 and PW-4 testified categorically that after 6/7 days of obtaining permission they approached the defendant with a request to perform his part of the contract as they were willing to pay their amount so left unpaid and the said factum was even corroborated by the evidence of DW-1, the defendant himself. In cross, D.W-1 himself reinforced that before 6/7 days of filing of the case they went to his house and requested him for execution of the sale deed.
14. I have given my anxious consideration to the rival contentions and submissions of both the parties and also have perused the deposition of the witnesses adduced in support of respective parties including the impugned judgment and decree as well as the pleadings of both the sides. On perusal of the paragraphs 3 and 4 of the plaint, it appears that the plaintiffs have made out a case for specific performance in their plaint by starting that they have offered the amount after obtaining permission for sale and they repeatedly asked the defendant to accept the remaining balance amount for executing the sale deed. But the defendant did not accept the same nor was the sale deed executed by him. It transpires that they have shown their readiness and willingness to pay their amount. On the other hand, P.W-1, the plaintiff No. 1 (Md. Monla Laskar), in his deposition, categorically deposed that after obtaining permission for sale, he along with P.W-4, the plaintiff No. 2, Md. Mahmadur Rahma Barbhuiya went to the house of the appellant for getting the sale deed executed and registered but the defendant assured them and told them to keep faith upon God. He also stated that he again visited the defendant with P.W. 4 for the last time on 19th day of the month without naming the month as he had forgotten and on refusal by the defendant to execute and register the sale deed despite the balance money being offered, they filed the suit. At the same breath, the P.W-4 reiterated and reinforced the deposition of P.W-1 and testified that after obtaining the permission for sale he enquired from the appellant through P.W.-l for execution of the registration of the 'Kabala' and lastly prior to 4/5 days of filing the suit, he along with P.W-1 visited the defendant and demanded for execution and registration of the sale deed and offered the balance money to the defendant, but he failed to do so.
15. Even D. W. 1, the defendant himself in his-cross-examination specifically stated that 6/7 days ahead of filing of the suit the plaintiffs went to his house with a demand to execute the sale deed within the period so fixed.
16. I have found, the evidence of all those witnesses were corroborative and consistent so as to prove and establish the willingness and readiness of the plaintiffs/respondents for such execution of the sale deed on payment of the balance amount. It is pertinent to mention that the execution of the agreement for sale, Ext. 1 on the basis of which the suit for specific performance was instituted and terms and conditions contained therein, were not in dispute between the parties. It is nobody's case that there was any element on fraud on the execution of the deed of agreement Ext. 1 and nobody even had doubted the conduct of the parties in the agreement.
17. It would be appropriate and necessary for proper adjudication of issue raised herein to refer to the relevant provision of Section 20 of the Act, as both the learned Counsel have wanted to rely upon this Section and the same may, thus, be quoted as under:
20. Discretion as to decreeing specific performance.-- (1) 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.
(2) The following are cases in which the Court may properly exercise discretion not to decree specific performance
:
(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.
Explanation 1.--....
Explanation 2.--....
(3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
18. An argument has been advanced on behalf of the appellant that Section 20(2)(c) would be applicable in this case, because this agreement itself makes it not inequitable to enforce the specific performance due to the reason that the amount so remaining unpaid as fixed in terms and condition of the agreement, was never paid to him. But I do not feel that this contention can be connected to this clause to make the agreement, Ext. 1 inequitable to enforce the specific performance. It is a clear and simple case of specific performance which is abundantly explicit from the pleadings itself. In the plaint in paragraphs 3 and 4 as noticed above, the plaintiffs stated that they are willing and ready to pay the amount and they have made repeated requests for such payment with a request to execute the sale deed by registration. Significantly, it is to be noticed that time-frame was only for four months and the deed of agreement for sale, Ext. 1 was executed on 21-5-97 and as per terms, reckoning four months from the said date, the time limit expired on 20-9-97. Permission was granted on 11-6-97. It has come on the evidence that after 3/4 days of obtaining permission of sale, the plaintiffs approached the defendant showing their readiness to pay the amount asking him to execute the sale deed. Thereafter suit was filed on 20-9-97 on the last date of expiry of four months so mentioned. It was also testified by D.W-1 that before 6/7 days of the filing of this suit, the plaintiffs approached him requesting such execution and registration of sale deed. In view of such facts situation, this Court does find that there was no delay or inaction on the part of the plaintiffs in complying with the terms and condition of the contract.
19. The Apex Court in the case of Prakash Chandra v. Angadlal and Ors. reported in : AIR1979SC1241 in paragraph 9 held that the ordinary rule was that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the said case, the conduct of the appellant as observed by the Apex Court, was not such to disentitle him to the relief of specific performance. He acted fairly throughout and there was nothing to say that by act of omission or commission, he encouraged the persons concerned to enter into the sale nor was there anything to prove that performance of the contact would involve the respondents in such hardship which they did not foresee.
20. In the case in hand, given facts and circumstances and also taking into account the conduct of the parties, it appears that there is nothing either in the terms and conditions of the agreement Ext. 1 or in the conduct of the parties at the time of entering into the contract to demonstrate that the plaintiffs were given an unfair advantage over the defendant-appellant. If a decree for specific performance for contract is granted as ordered by the impugned judgment and decree in favour of the respondents-plaintiffs, it would not be either inequitable or amount to give unfair advantage to respondents over the appellant.
21. There is no doubt that relief of specific performance of the contract is an equitable relief and it is the discretion of the Court. However, the Court has to exercise its discretion judiciously, reasonably and with sound judicial principles. This Court finds that the respondents seeking equitable remedy by Instituting the instant suit for specific performance came with clean hands. The suit was filed within the time without any delay or laches, that is, it was filed exactly on the date when the time-limit of four months expired. Moreso, it is established that in a suit for specific performance, the plaintiff should plead that he is ready and willing to perform his part of the contract and in absence of such pleadings the suit itself is not maintainable. it transpires herein that the plaintiffs' conduct is in consonance with the above well settled law. In the premises aforesaid, this Court is of the considered opinion that exceptions under Section 20(2) cannot be pressed into service in the case in
hand.
22. Having regard to the ratio laid down in the above judicial pronouncements and on meticulous scanning of the impugned judgment, this Court does not find any such illegality or irregularity or any gross error in the impugned judgment and decree either on facts or in law to upset the same and accordingly the same stands affirmed.
23. In the result this appeal fails and stands dismissed. No costs.