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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.421/2004
Keshao s/o Mahadeo Naktode,
aged about 53 years, Occ. Cultivator,
r/o Allipur, Tq. Hinganghat, Dist. Wardha. .....APPELLANT
...V E R S U S...
Sadanand s/o Ramaji Bhagat,
aged 63 years, Occ. Cultivator and
Business, r/o Borgaon (Aloda),
Tq. Deoli, Dist. Wardha. ...RESPONDENT
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Mrs. A. R. Khare, Advocate for appellant.
Mr. S. S. Deshmukh, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 24.11.2017 ORAL JUDGMENT
1. Heard Mrs. A. R. Khare, Advocate for appellant and Mr.S. S. Deshmukh, Advocate for respondent.
2. On 12.01.2005, the present appeal was admitted on the following substantial question of law.
(i) Whether specific performance of an agreement of sale and delivery of possession could be granted to the defendant in counter claim when perpetual injunction restraining the defendants from disturbing the possession of the plaintiff has been granted? ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 :::
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3. During the pendency of the present second appeal, an application, Civil Application No.823/2017 was filed under Section 100 read with Order XLI Rule 2 of the Code of Civil Procedure for permission to raise additional substantial question of law. As per this, following substantial question of law arises, is the submission of the learned counsel for the applicant.
"Can readiness and willingness to pay less than actual balance of sale consideration entitles the defendant-counter claimant to decree of specific performance of contract of sale?"
On 14.08.2017, this Court observed that this application will be considered at the time of final hearing.
4. The second appeal was called out for final hearing on 23.11.2017. On this application, elaborate submissions were made. After hearing the learned counsel for the parties, following substantial question of law was also framed.
(1-A) Could it be said that in the given set of facts and the evidence as brought on record, the respondent-original defendant- counter claimant was ready and willing to perform his part of contract?
5. In the present case, the appellant and respondent will be described as per their original positions in the suit. This appellant is plaintiff and the respondent is defendant.
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6. The plaintiff approached before the Court of law by filing the suit for permanent injunction against the defendant. The said suit was registered as Regular Civil Suit No.228/1991. The suit was allotted to the file of learned Jt. Civil Judge Senior Division, Wardha.
7. As per the plaintiff, the plaintiff is owner of the agricultural land situated at Mouja Borgaon (Aloda), Taluka Deoli, District Wardha having Survey No.212/1 (hereinafter referred to as "Suit Field") The suit field admeasures 2.20 HR and it is in cultivating possession of the plaintiff.
8. The plaintiff also states that on 09.05.1989, the plaintiff agreed to sell the suit property to the defendant for consideration of Rs.17,500/- and the earnest note was executed in favour of the defendant at Alipur. At the time of execution of earnest note an earnest amount of Rs.10,000/- was paid to the plaintiff and the agreed date for execution of the sale deed was 15.04.1990. According to the plaintiff, the possession of the suit field was to be given at the time of execution of the sale deed.
9. The plaint further recites that on 15.04.1990, the defendant conveyed to the plaintiff that he is not in position to get the sale deed ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 4 sa421.04.odt executed and therefore he asked for extension of the date for execution of the sale deed. For this reason, in the earnest note itself, the date for execution of the sale deed was extended up to 01.05.1991. It is also stated in the plaint that though the earnest note is executed at Alipur, insofar as the extension of the date was concerned, it was carried out at the village of plaintiff i.e. Borgaon (Aloda).
10. It is further the case in the plaint that the defendant was not resident of Borgaon (Aloda) and he is resident of Nagpur. However, subsequently, he shifted from Nagpur to Borgaon and started disturbing possession of the plaintiff. It is also the case of the plaintiff before the trial Court as it could be seen from the plaint that on 01.05.1991, the plaintiff requested the defendant that the extended date for execution of the sale deed is coming near and therefore he could get the sale deed executed. However, it was informed that the defendant was not interested in execution of the sale deed in his favour and the plaintiff should refund his earnest amount. As per the plaintiff, the defendant was not in a position to get the sale deed executed in his favour.
11. As per the plaintiff, though the plaintiff was having cultivating possession, the defendant tried to dispossess him by taking advantage of execution of earnest note. Therefore, the suit for injunction was filed with a prayer that the defendant and/or anybody ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 5 sa421.04.odt claiming through him shall be restrained permanently from disturbing the peaceful possession of the plaintiff over the suit property.
12. On being summoned, the defendant appeared and filed his written statement (Exh.-25). Not only he filed the written statement but also raised counter claim. In the said counter claim, he prayed for grant of decree of specific performance of contract by paying the requisite Court fee. According to the counter claim, after execution of the earnest note dated 10.05.1989, on 31.03.1990, he paid Rs.1500/- to the plaintiff and on 15.04.1990, he paid Rs.1,000/- to the plaintiff. Thus, in totality, according to the defendant, he paid Rs.12,500/-. As per the counter claim, the defendant was always ready to pay the balance amount of Rs.5,000/- and in fact on 01.05.1991, he came to the office of Sub Registrar, Wardha with the remaining amount of Rs.5,000/- for execution of the sale deed and was waiting for the plaintiff till 5.00 p.m. However, the plaintiff failed to attend the office of Sub Registrar. Therefore, on 28.06.1991, he sent a registered notice. By the said notice, the defendant asked the plaintiff to remain present on 08.07.1991 in the office of Registrar at Wardha for execution of the sale deed. However, the said notice was refused by the plaintiff. It is further case of the defendant in the counter claim that he was ready and willing to perform his part of contract i.e. execution of the sale deed in his favour by paying the balance consideration of Rs.5,000/- to the plaintiff. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 :::
6 sa421.04.odt He therefore prayed for a decree of specific performance of contract.
13. On the basis of the rival pleadings, the learned Judge of the trial Court framed following issues:
"1. Whether the plaintiff proves that he is in possession of the suit field?
2. Whether the defendant proves that he is ready and willing to perform his part of contract?
3. Whether the defendant proves that he paid Rs.12,500/- as earnest amount to the plaintiff?
4. Whether the plaintiff is entitled for permanent injunction as sought for?
5. Whether the defendant is entitled for decree of specific performance of contract?
6. Whether the defendant is entitled to refund of earnest money of Rs.12,500/- with interest at the rate of Rs.16% p.a.?
7. Whether the defendant is entitled to recover the possession of the suit field from the plaintiff?
The parties went on trial in order to prove their respective cases. The learned Judge of the trial Court, vide judgment and decree dated 17.08.2000, decreed the suit for injunction and also granted decree of specific performance of contract. The operative order of the impugned judgment delivered by the learned trial Court is reproduced hereinbelow:
"i. The plaintiff's suit for injunction is decreed and by order of permanent injunction, the defendant Sadanand Bhagat is hereby ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 7 sa421.04.odt permanently restrained from disturbing the peaceful possession of the plaintiff in a suit field bearing No. 212/1, admeasuring 2.20 HR situated at mouza Borgaon (Aloda) Tahsil Deoli, Distt. Wardha, without following due process of law.
ii. The defendant's counter-claim for specific performance of contract is allowed and decreed. The plaintiff is hereby directed to execute the sale-deed of the suit field survey no.212/1, admeasuring 2.20 HR situated at mouza Borgaon (Aloda), Tahsil Deoli, Distt. Wardha after receipt of balance amount of consideration i.e. Rs.7500/- from the defendant and do hand over the vacant possession after execution of sale-deed.
iii. The defendant Sadanand Ramji Bhagat is hereby directed to deposit Rs.7,500/- in the Court towards the balance of consideration within one month from today to have the execution of sale-deed in his favour and after execution of sale-deed the plaintiff may have the amount so deposited by defendant.
iv. If the plaintiff fails to execute the sale-deed after depositing of Rs.7500/- by the defendant in the Court then the defendant have the execution of sale-deed through Court.v. Parties to bear their own costs.
14. Being dissatisfied with the decree passed in counter claim in the nature of decree of specific performance of contract against the plaintiff, he filed Regular Civil Appeal No.1/2001. Mr. Deshmukh, learned counsel for the respondent-original defendant submitted that though the defendant suffered a decree of permanent injunction, he did not file any appeal nor filed cross-appeal in the appeal filed by plaintiff. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 :::
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15. After hearing the parties to the appeal, vide judgment dated 05.07.2004, the learned District Judge Wardha dismissed the appeal.
Hence this Second Appeal.
16. During the course of arguments, Mrs. Khare, the learned counsel for the appellant, submitted that she is not making any submission in respect of the substantial question of law that was formulated on 12.01.2005 and her arguments are restricted only to the substantial question of law (1-A) which pertains to willingness and readiness of the defendant.
17. After inviting my attention to the finding recorded by the learned trial Court, she submitted that the learned trial Court specifically turned down the case of the defendant that he paid Rs.2500/- in addition to Rs.10,000/-, which was paid at the time of execution of the earnest note and though an opportunity was available to the defendant to file cross-appeal to challenge the said finding, the defendant chose not to file any cross-appeal. Resultantly, the finding of fact recorded that only Rs.10,000/- was paid by the defendant to the plaintiff has attained finality. She submitted that therefore even if the entire case of the defendant is accepted for the sake of argument, on the date when the defendant claimed that he was present in the office of Sub Registrar, he was not present with the remaining amount of ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 9 sa421.04.odt consideration. Resultantly, her submission is that a finding will have to be recorded that the defendant was not ready and willing to perform his part of contract. She invited my attention to the paragraph nos. 11 and 12 of the reported case in Malkiat Singh (Deceased by LRs.) Vs. Om Prakash (deceased) by LRs.) and anr.; AIR 2004 Punjab & Haryana, 253, and prayed that the appeal be allowed.
18. Per Contra, Mr. Deshmukh, the learned counsel for the defendant submitted that he has proved his presence at the office of Sub Registrar, Wardha along with the balance consideration of Rs.5,000/-. He submitted that once the agreement in question is admitted by the plaintiff and once he has admitted that he has received Rs.10,000/- as the earnest amount, it was the duty of the plaintiff to remain present in the office of Sub Registrar. He submitted that the plaintiff has given acknowledgement which is at Exh.-50, which shows that on 31.03.1990, the plaintiff has taken Rs.1500/-. He further submitted that in view of Section 16 (c) of the Specific Relief Act, it is not that the plaintiff must prove that he has actually tendered payment of money to the defendant but to plead and prove that he was always ready and willing to perform the essential terms of the contract which were to be performed by him is sufficient and for that he placed reliance on a reported case of Mustt. Sabira Khatun Vs. Mustt. Syeda Fatema Khatoon,1995 Gauhati 104. He ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 10 sa421.04.odt also invited my attention to the law laid down in K Prakash Vs. B.R. Sampath Kumar; (2015) 1 SCC 597 in respect of interference by the appellate Court with the discretion exercised by the trial Court and submitted that the appeal be dismissed.
19. After hearing the parties to this appeal and in view of the provisions of Rule 6A of Order VIII of the Code of Civil Procedure, in my view, question of law which was formulated on 12.01.2005 does not fall for consideration. In addition to it, the appellant has not made any submission in that behalf.
20. Most of the facts in the present appeal are admitted. It is not in dispute that the plaintiff is owner of the suit field. It is also not in dispute that on 19.05.1989, an agreement of sale Exh.-51 was executed in between the plaintiff and defendant. There is no quarrel that the agreed consideration was Rs.17,500/-. It is also not in dispute that at the time of execution of the earnest note Exh.-51, the plaintiff obtained Rs.10,000/- from the defendant towards earnest money. It is also not in dispute that originally, the agreed date for execution of the sale deed was 15.04.1990 and the said time was extended by consent of the parties to 01.05.1991 and the said date was incorporated in the earnest note Exh.-51.
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21. The dispute is whether the defendant was ready to perform his part of contract i.e. whether he was ready to obtain the sale deed in his favour by paying the balance consideration.
22. As observed, there is no dispute about the payment of earnest amount of Rs.10,000/- at the time of execution of agreement of sale Exh.-51 on 09.05.1989. There is a dispute in between the parties about the further payment of Rs.2500/- on two different dates. As per the counter claim, the defendant submitted that on 31.03.1990, he paid Rs.1500/- and on 15.04.1990, he paid Rs.1,000/- in addition to Rs.10,000/-. Thus, in totality, he has paid Rs.12,500/- and he was under obligation only to pay Rs.5,000/-. In the counter claim, the defendant has prayed the following relief:
"(i) to pass a decree in favuor of the defendant for specific performance of contract i.e. execution of sale-deed in his favour by paying remaining amount of balance consideration of Rs.5,000/- to the plaintiff.
Or in the alternative-
(ii) refund of earnest money of Rs.12,500/- with interest thereon at the rate of 18% percent per annum from 10-5-89 and onwards.
Or in the alternative-
(iii) to direct the plaintiff to hand over the possession of the suit field in favour of the defendant.
(iv) Costs of the counter claim be saddled on the plaintiff.
(v) to grant any other relief in favour of defendant in the circumstances of the case which the Honourable Court thinks just and proper."
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23. To the counter claim, the plaintiff filed his written statement and thereby raised serious dispute; (i) regarding payment of Rs.2500/- by way of two different dates and (ii) the defendant was to pay only Rs.5000/- by way of balance consideration.
24. As observed in the earlier part of the judgment, on the basis of the pleadings, the learned trial Court framed the issues. Issue no.3 was as to whether defendant has proved that he has paid Rs.12,000/- as earnest amount to the plaintiff.
25. Exh.-50 on which the learned counsel for the defendant has heavily relied is in the nature of acknowledgment. Despite that on 31.03.1990, Rs.1500/- was taken and below that there is signature as "कक. म. ननगततडक" and it is also signed by "शनमरनव जनगतजज टटपलक". The said document also shows that Rs.7000/- is remained to be paid. This document was brought on record from the side of the defendant. The witness Shamrao Tiple was not examined by the defendant.
26. The learned trial Judge has recorded a specific finding of fact that the defendant failed to prove that on 31.03.1990, he paid Rs.1,500/- and on 15.04.1990 he paid Rs.1000/-to the plaintiff. Not only that the learned trial Court has discarded the document Exh.-50. The learned trial Court thereafter recorded a specific finding that the ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 13 sa421.04.odt defendant has proved that he has paid only Rs.10,000/- to the plaintiff and not Rs.12,500/- as claimed by the defendant. Thus, it is crystal clear that the remaining agreed sale consideration was Rs.7500/- and the defendant was under obligation to pay the said remaining consideration for obtaining the sale deed in his favour.
27. Though, issue no.3 was recorded against the defendant and though the opportunity was available to the defendant to file cross- appeal in the appeal filed by the plaintiff, the said finding was not questioned. Thus, the finding of fact that the defendant paid only Rs.10,000/- and he failed to prove his case that he paid Rs.2500/- after execution of earnest note (Exh.-51), has attained finality.
28. The law about readiness and willingness is well crystallized by various judicial pronouncements. It is always on the shoulder of a party who claims decree for specific performance of contract to show continued readiness and willingness to perform his part of contract in accordance with the terms from the date of contract.
29. In the present case, the parties agreed to sell and purchase of the suit field for consideration of Rs.17,500/-. Rs.10,000/- were paid to the vendor. Thus, the vendee was to pay Rs.7500/- at the time of execution of the sale deed before the Sub Registrar, Wardha, is the ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 14 sa421.04.odt covenant in the earnest note Exh.-51. Except this covenant, there are no other terms and conditions. Thus essential condition in this contract, as it is spelt out from Exh.-51, is that the vendee (defendant) was under an obligation to pay Rs.7500/- on the agreed date for execution of the sale deed before the Sub Registrar.
30. The extended date, as per Exh.-51 is 01.05.1991. However, as per notice Exh.-72, which according to the defendant, was refused by the plaintiff, the defendant remained present in the office of Sub Registrar on 08.07.1991 with Rs.5000/- with him. It is not the case of the defendant that on the said date, he was present in the office of Sub Registrar along with an amount of Rs.7500/- but it is his specific case in the counter claim and also in his evidence that only an amount of Rs.5000/- was with him on 08.07.1991 for getting the sale deed executed in his favour.
31. Once, the defendant has failed to prove that he has paid Rs.2500/- to the plaintiff and in that behalf a finding of fact is recorded against the defendant, the balance amount was Rs.7500/-. Since admittedly the defendant was not having the said amount with him in the office of Sub Registrar, in my view, it could not be said that the defendant was ready and willing to perform his part of contract inasmuch as, as per the essential term of the agreement Exh.-51, balance ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 15 sa421.04.odt amount of Rs.7500/- was to be paid at the time of execution of sale deed. Consequently, in my view, both the Courts below have committed error in granting the decree for specific performance of contract in favour of the defendant. This is required to be set aside by answering the substantial question of law as formulated that the defendant was not ready and willing to perform his part of contract.
32. Since the defendant has paid an amount of Rs.10,000/- and the said fact is not denied by the plaintiff and also there is no clause of forfeiture of the said earnest amount, in my view, the plaintiff is required to refund Rs.10,000/- to the defendant along with interest at 6% per annum from 10.05.1989 till its actual realization. The plaintiff is directed to refund Rs.10,000/- along with interest at the rate of 6% per annum from 10.05.1989 within a period of six months from today, failing which it will be open for the defendant to recover the same from the plaintiff, in accordance with law.
33. In view of above, the second appeal is partly allowed. The judgment and decree passed by Jt. Civil Judge Junior Division, Wardha in Regular Civil Suit No.228/1991, dated 17.08.2000, granting decree for specific performance of contract in the counter claim in Regular Civil Suit No.228/1991 together with judgment and decree dated 05.07.2004 ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 ::: 16 sa421.04.odt in Regular Civil Appeal No.1/2001 confirming the judgment and decree passed by trial Court are hereby quashed and set aside.
The appellant-plaintiff is hereby directed to refund an amount of Rs.10,000/- to the respondent-defendant along with interest at the rate of 6% per annum from 10.05.1989 within six months from today. No order as to costs.
JUDGE kahale ::: Uploaded on - 06/12/2017 ::: Downloaded on - 06/12/2017 22:56:14 :::