Hari Narayan vs Awadh Narayan Singh
2015 Latest Caselaw 5164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 19
 

 
Case :- 	SECOND APPEAL No. - 923 of 2015
 

 
Appellant :- 	Hari Narayan
 
Respondent :- 	Awadh Narayan Singh
 
Counsel for Appellant :- 	Dhananjay Kumar Mishra,Shashi Nandan
 
Counsel for Respondent :- Kuldeep Singh,Pankaj Kumar
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. Original Suit No. 112/1996, Awadh Narayan Singh v. Hari Narayan Singh, was filed for the relief of specific performance of contract. Plaint case in brief was that defendant had agreed to sell his total 1/4th share in plots no. 153, 168 and 314 situated in village Dhamahi for Rs. 85,000/- to plaintiff and executed agreement to sell dated 31.7.1995 and received Rs. 40,000/- as advance consideration at the time of registration of said deed, which was registered on 01.07.1996. It was agreed between the parties that defendant will receive remaining consideration of Rs. 45,000/- at the time of registration of sale deed. Plaintiff has been ready to perform his part of contract and asked defendant in January, 1996 to reach at Sub-Registrar Office, Chunar for execution of sale deed, but defendant was not ready and absented. Then, plaintiff had given notice dated 19.2.1996 for reaching at Sub-Registrar Office for execution of sale deed on 8.3.1996, after which he reached in Sub-Registrar Office along with remaining sale consideration but defendant has not reached. Since plaintiff had been ready and willing to perform his part of contract and defendant is not ready for the same, therefore, plaintiff had filed suit for specific performance of said contract.

2. Defendant had filed written statement in original suit, in which he denied the plaint averment including the execution of agreement to sell. He further pleaded that plaintiff had promised him to get the loan sanctioned from bank, and on this pretext he had obtained signature and thumb impression of defendant, but the defendant had not executed any agreement to sell, therefore, suit of plaintiff is based on incorrect facts and is liable to be dismissed.

3. After framing issues and accepting adduced evidences, the Court of Civil Judge (Senior Division), Mirzapur had decreed the suit by its judgment dated 27.5.2011, by which suit was decreed for specific performance of contract. Trial court had appreciated the evidences of plaintiff and defendant, and specifically discussed the oral evidence of defendant, where he specifically admitted about putting signatures on documents. Trial court had believed evidences adduced by plaintiff and disbelieved evidences of defendant (present appellant) mentioning its reasons, and thereafter gave specific finding of fact that plaintiff's case is proved and defendant had executed registered agreement to sell as alleged in plaint.

4. Against the judgment of trial court, Civil Appeal no. 52 of 2014, Hari Narayan Vs. Awadh Narayan Singh was preferred, which was heard and dismissed by the judgment dated 18.09.2015 of the court of District Judge, Mirzapur. Aggrieved by the judgments of two courts below, present second appeal has been preferred by defendant of the original suit.

5. Learned counsel for the appellant contended that plaintiff-respondent is not signatory of the registered agreement to sell. He contended that since contract has to be executed by two persons and in present matter it was executed by only one party, therefore, it is a void document. He further contended that the plaint must always mention the readiness and willingness of plaintiff to perform his part of contract but it is not written in present case, therefore, suit was erroneously decreed by the trial court and wrongly affirmed by first appellate court. For these reasons, judgments of the courts below are erroneous, so appeal should be admitted for being allowed.

6. Learned counsel for the respondent contended that every contract need not be necessarily signed by purchaser. Signature of vendor is sufficient. He also contended that there is no mandatory necessity of mentioning readiness and willingness in every plaint, if it is mentioned in other words and proved by evidences. He contended that both the courts below had given concurrent finding of fact about the readiness and willingness on the part of plaintiff-respondent to execute sale deed. He also contended that in the plaint there are specific averments of readiness and willingness on the part of plaintiff to perform his contract. In these circumstances, appeal should be dismissed because dispute relates to fact for which concurrent finding of facts are against appellant-defendant.

7. So far the contention about readiness and willingness on part of plaintiff-respondent is concerned, it is settled law that plaintiff should mention such facts in plaint and he must prove that he has been ready and willing to perform his part of contract. In fact it is mentioned in plaint. Even then the main contention of learned counsel for the appellant was that there is no mention of plaintiff's readiness and willingness to perform his part of contract in plaint so the suit is barred by Section 16 (c) of Specific Relief Act.

8. In N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC 115 the Apex Court had held as under:-

"5. . . . The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."

9. In Biswanath Ghosh v. Gobinda Ghosh, (2014) 11 SCC 605 the Supreme Court had held as under:-

"22. It is a well-settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant. For the compliance with Section 16(c) of the Act it is not necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. --"

28. In sum and substance, in our considered opinion, the readiness and willingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfil his obligation and accept the performance when the time for performance arrives."

10. In Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337 the Apex Court had held as under:

"9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."

11. A perusal of pleadings reveal that although this specific words of plaintiff being always ready and willing to perform his part of contract in question is mentioned in para 10 of the plaint, but from considering the total averment of plaint, it is explicitly clear that such intention is evident from plaint when plaintiff has mentioned that on his insistence defendant had agreed to execute sale deed, and when he reached to office of Sub-Registrar, then defendant absented herself, so he had again reminded him, and then sent legal notice through counsel for execution of sale deed in compliance of said registered contract. The overall reading of plaint makes it clear that plaintiff had all along being ready and willing to perform his part of contract in question. On the basis of pleadings of the parties, trial court had framed specific issue no.-1 and issue no.-6 and held that plaintiff had always being ready and willing to perform his part of contract.

12. From the aforementioned sequence of facts and events, it can be safely inferred that the respondent-plaintiff was always ready and willing to discharge his obligation and perform his part of the agreement. In my considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance with the requirements of Section 16(c) of the Specific Relief Act. Taking into consideration the entire facts and circumstances of the case and the law discussed, in my opinion the impugned judgments passed by the trial Court as well as the first appellate Court are not erroneous on this point of law.

13. So far argument of learned counsel for the appellant regarding signature of respondent-plaintiff being not present on the date of registered deed of agreement to sell is concerned, this contention is being heard for rejection. A contract need not necessarily be signed by two parties. It can be oral between the two parties, or can be signed by one party and its acceptance by words and deeds by other parties may complete the formality of agreement being a contract. In present case, from perusal of proved evidences as held by the two courts below, it is established fact that defendant-appellant had offered to sell his property in dispute to plaintiff-respondent for Rs. 85,000/- and executed registered deed for the same and for acceptance of said offer of the defendant, the plaintiff had not only accepted said offer, which was mentioned in deed of agreement, but also paid him advance consideration. For offer of advance consideration on behalf of plaintiff, the acceptance on behalf of defendant was in form of execution of registered sale deed. Likewise for the offer of defendant-appellant for execution of registered agreement to sell the acceptance on behalf of plaintiff was in form of payment of advance consideration and getting it mentioned in deed of agreement to sell. Since property belong in question was immovable property, therefore, the said agreement was registered in compliance of mandatory provisions of Registration Act. Therefore this argument is unacceptable that only on the basis of signature of one person on registered deed of agreement to sell, the agreement in question may be treated as incomplete and non-enforceable

14. In Alka Bose v. Parmatma Devi and Ors., (2009) 2 SCC 582, the Apex Court had discussed this matter and held as follows:-

"An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."

15. As held by Apex Court, generally there is no practice of purchaser alone being signing an agreement of sale. But the non signing of such agreement cannot make an agreement void if other ingredients of a valid contract has been fulfilled. All necessary requirements for a contract like offer, acceptance, consideration and other legal formalities have been fulfilled, as has been done in present case.

16. In present case, the only dispute between the parties is as to whether there had been registered valid willful agreement to sell between the parties as stated in the plaint. This is a question of fact that can be decided on the basis of evidences, as has been done in present case by the two courts below. There is nothing that may be treated as question of law regarding the real dispute between the parties. The findings given by the two courts below are based on proper appreciation of evidences and these findings are concurrent and acceptable. Such findings cannot be re-appreciated in exercise of jurisdiction of second appeal by this Court.

17. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law, much less a substantial question of law, is involved in this case before this Court. None of the contentions of the learned counsel for the appellant-defendant can be sustained.

18. In view of the above, this second appeal is dismissed.

Order Date :- 8.12.2015

SR