Smt. Meena Rajpoot vs Ram Bharose Katiyar & Others
2015 Latest Caselaw 2228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 
										A.F.R.
 
Case :- FIRST APPEAL No. - 491 of 2008
 

 
Appellant :- Smt. Meena Rajpoot
 
Respondent :- Ram Bharose Katiyar & Others
 
Counsel for Appellant :- Amar Singh,Dharam Pal Singh,P.K. Dubey,S. Narain,S.Niranjan
 
Counsel for Respondent :- S.C.Verma,Deepak Gaur,Radhey Shyam
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Brijesh Kumar Srivastava-II,J.

1. This is the plaintiff's appeal under Section 96, Code of Civil Procedure(hereinafter referred to as 'CPC'), arisen from the judgment and decree dated 31.05.2008 passed by Smt. Vijay Raje Sisodiya, First Additional Civil Judge(Senior Division), Farrukhabad (hereinafter referred to as the 'Court below') in Original Suit No. 364 of 2005(Smt. Meena Rajpoot Vs. Ram Bharose Katiyar and others). By the impugned judgment, the Court below has dismissed original suit instituted by plaintiff-appellant for specific performance of contract by enforcing contract for sale dated 04.06.2003 in respect to Khasra No. 225, area 2.06 acres situated at Village Gandhi, Pargana Khakhatmau, Tehsil Amritpur, District Farrukhabad along with construction existing thereon, i.e., a brick kiln and a room and to handover possession of the said plot to plaintiff after execution of sale deed and receiving balance consideration; and in case defendant is not agreeable to execute sale deed then the Court should get the sale deed executed. The Court should also include name of defendant No.2 as vendor in the aforesaid sale deed. The alternative prayer was for a decree of recovery of Rs. 1,58,720/- along with interest at the rate of 18% commencing from 04.06.2003 till actual payment.

2. The Court below did not find any of the relief admissible to the plaintiff and hence dismissed the suit.

3. The plaintiff appellant instituted aforesaid suit vide plaint dated 18.10.2003 stating therein that defendant-1 is the owner in possession of land measuring 2.06 acres, khasra No. 225, situate at Village Gandhi, Pargana Khakhatmau, Tehsil Amritpur, District Farrukhabad. There also exists a brick kiln and a room on the said land. Defendant-1 agreed to transfer aforesaid land along with existing construction for a total consideration of Rs. 5,07,000/-. An advance money of Rs. 1,35,000/- was paid by plaintiff-appellant to defendant-1. Parties executed a contract for sale dated 04.06.2003. It was stipulated therein that remaining consideration shall be paid at the time of execution of sale deed, which would be executed within four months. Plaintiff throughout has been ready and willing for execution of sale deed pursuant to contract for sale dated 04.06.2003. She requested defendant, from time to time, to execute sale deed but defendant-1, on one or the other pretext, deferred the same continuously. On 03.10.2003 plaintiff-appellant was present in the Office of Sub Registrar, Tehsil Amritpur, carrying with her balance amount of consideration but defendant-1 did not come and present himself in the office of Sub Registrar for execution of sale deed. Defendant-1 also did not give any information about his absence. Thereafter, plaintiff-appellant attempted to contact defendant-1 continuously but he avoided meeting. By compulsion, plaintiff-appellant through her counsel Sri Kartik Chandra Mishra sent a notice dated 07.10.2003, asking defendant-1 to remain present in the office of Sub Registrar, Tehsil Amritpur on 13.10.2003 for execution of sale deed pursuant to contract for sale dated 04.06.2003. On 13.10.2003 defendant-1, however, neither appeared before Sub Registrar, nor gave any information. Plaintiff, therefore is continuously willing and ready to have sale deed executed but defendant-1 is not ready to do so. On the contrary, defendant-1 in collusion with defendant-3 is desirous of getting disputed land attached and auctioned. Plaintiff is ready to pay balance amount to the defendant-3 on behalf of defendant-1 but both are not agreeable for the same and are intending to cause damage to plaintiff by getting disputed land attached and auctioned. Contrary to contract for sale dated 04.06.2003, defendant-1 has executed a sale deed dated 30.01.2004, transferring 0.76 acres of land in question to defendant-2, Adarsh Katiyar. The aforesaid sale deed is void and illegal and would not confer any right upon defendant-2 on the disputed land. Despite information defendant-2 got the sale deed executed from defendant-1. Since defendant left no option to plaintiff, hence, the suit.

4. In the aforesaid suit defendant-1 was proposed vendor i.e., Ram Bharose Katiyar, defendant-2 was subsequent purchaser of part of disputed land and defendant-3 is Bank of Baroda, to which disputed land was hypothetecated/ mortgage in lieu of certain amount of loan taken by defendant-1.

5. Suit was contested by Bank, filing its written statement dated 28.02.2005. It generally deny averments of plaint and in additional plea stated that defendant-1 obtained a cash credit facility of Rs. 4,00,000/- on 16.12.2000 for the purpose of running M/s. Rudra Int Bhatta and against the aforesaid loan facility, created an equitable mortgage upon disputed land i.e. Khasra No. 225, area 2.06 acres. Plaintiff was a guarantor in the aforesaid transaction and, therefore, well aware of the fact that disputed land was under equitable mortgage with the bank, who has first charge over disputed land. Alleged contract for sale dated 04.06.2003 was executed by defendant-1 without any consent or prior permission of Bank, hence, the said contract was illegal and void. Defendant-1 did not clear loan amount hence has no right to have disputed land free from further transaction. Bank is entitled to attach and auction disputed property.

6. Defendant-2 is subsequent purchaser of a part of land in dispute. He also filed written statement dated 11.09.2006, generally denying averments of plaint. It is said that value of entire land along with construction over it is twenty lacs. The defendant-2 had no information of any contract for sale between plaintiff and defendant-1 when sale deed dated 30.01.2004 was executed. Neither plaintiff, nor defendant-1 brought this fact to the notice of defendant-2. He has taken possession of 0.76 acres of land after payment of due consideration and execution of sale deed. Suit is barred by Section 41 of Transfer of Property Act, 1882(hereinafter referred to as Act, 1882). The defendant-2 had no information about any loan transaction between defendants-1 and 3, and therefore, it will not have any effect on sale deed executed between defendant-1 and defendant-2. The contract for sale is not enforceable. The plaintiff was never ready and willing to comply with the conditions of contract. Suit is barred by Sections 10 and 18 of Contract Act, 1872(hereinafter referred to as 'Act, 1872). The contract for sale is not binding upon defendant-2. Suit is also barred by Section 16 of Specific Relief Act, 1963(hereinafter referred to as 'Act, 1963').

7. The main contesting party i.e., defendant-1 contested the suit by filing written statement dated 14.05.2007. It denied various averments of plaint except para 1. In additional pleas, defendant-1 said that contract for sale is unregistered, inoperative and cannot be enforced. Sale deed was not got executed within prescribed time. Plaintiff was never willing and ready for execution of sale deed, therefore, advance money paid stood forfeited. Sale deed executed by defendant-1 in favour of defendant-2 is valid. Suit has been filed by plaintiff in collusion with defendant-3. It is barred by time.

8. The Court below formulated following ten issues:

"1. क्या वादिनी विक्रय अनुबंध पत्र दिनांक 4.6.2003 की शर्तों के अनुसार प्रतिवादी संख्या 1 व 2 से शेष विक्रय मूल्य अदा करके प्रश्नगत संपत्ति का विक्रय पत्र करवाने की अधिकारी है ?

"1. Whether plaintiff is entitled to get sale deed of proper in question, executed by defendants-1 and 2 by paying remaining sale price as per the conditions of agreement to sale dated 4.6.2003?

2. क्या प्रश्नगत संपत्ति बैंक के पास बंधक होने के कारन विक्रय अनुबंध-पत्र अवैध एवं शुन्य है ?

2. Whether agreement to sale is illegal and void due to property in question being mortgaged with bank?

3. क्या वादिनी द्वारा वाद का मूल्यांकन कम किया गया है ?

3. Whether plaintiff has made low valuation of suit?

4. क्या वादिनी अदा किया गया न्यायशुल्क अपर्याप्त है ?

4. Whether the Court fee paid by plaintiff is insufficient?

5. क्या प्रश्नगत विक्रय अनुबंध-पत्र फ़र्ज़ी एवं नुमायशी है ?

5. Whether agreement to sale in question is forged and exhibitory?

6. क्या प्रश्नगत विक्रय अनुबंध-पत्र धारा 10 व 18 संविदा अधिनियम से बाधित है ?

6. Whether agreement to sale in question is barred by Section 18 and 18 of Contract Act?

7. क्या वाद धारा 16 विनिर्दिष्ट अनुतोष अधिनियम के प्रावधानों से बाधित है?

7. Whether suit is barred by provisions of Section 16 of Specific Relief Act?

8.क्या वाद प्रतिवादी संख्या-2 व 3 की अनावश्यक पक्षकार के बनाये जाने के दोष से दूषित है ?

8. Whether suit is vitiated with the act of arraying defendants-2 and 3 unnecessarily as party?

9. क्या वादिनी प्रश्नगत विक्रय अनुबंध-पत्र के आधार पर बैनामा करने को सदैव तैयार व इच्छुक रही है ?

9. Whether plaintiff has always been ready and willing to get sale deed executed on the basis of agreement to sale in question?

10. क्या वादिनी कोई अनुतोष पाने की अधिकारी है ?"

10. Whether plaintiff is entitled to get any relief?"

(English Translation by Court)

9. In support of plaint case, plaintiff-appellant examined herself as P.W.1, Sri Lakshman Singh, Kailash Babu, Abhilash Babu and Ram Prakash Awasthi as P.W.2, P.W.3, P.W.4 and P.W.5 respectively. Documentary evidence adduced by plaintiff-appellant comprised contract for sale (Ex.1), application submitted in Sub Registrar Office for attendance (Ex.2), receipt of attendance on 13.10.2003 (Ex.3), receipt of notice dated 07.10.2003 (Ex.4) and a copy of the sale deed (Ex.5).

10. Defendants contesting suit, examined D.W.1, Balram, D.W.2, Ram Bharose and D.W.3, Adarsh Kumar Katiyar. Besides this five documentary evidence were also adduced, which we may be discussed later as and when we find necessary.

11. Issue 5 relating to contract for sale was answered against defendants since its execution was admitted by defendant-1. Issue 8 was answered against defendants since it was not pressed. Issues 2 and 6 were also answered against defendants. However, issues 1 and 9 were answered against plaintiff and issue 7 was answered in favour of defendants. Issue 10, relating to relief thus was answered against plaintiff and suit was accordingly dismissed vide impugned judgment dated 31.05.2008.

12. Sri Dharam Pal Singh, learned Senior Counsel, assisted by Sri S. Niranjan, Advocate, appearing for appellant submitted that the Court below committed manifest error in treating time as essence for contract and thereby denying relief to plaintiff. He submitted that defendant-1 has not cleared bank dues, therefore was not entitled to execute sale deed, hence, it cannot be said that plaintiff was not ready and willing to execute sale deed. He thirdly contended that in any case, even after execution of sale deed dated 30.01.2004 in favour of defendant-2 transferring 0.76 acres of land, still plaintiff is willing for execution of sale deed of remaining land hence Court below ought to have decreed suit to that extent. He contended that Court below has illegally exercised its discretion by not enforcing contract for sale and suit for specific performance. It has committed manifest error and, therefore, the impugned judgment and decree is liable to be set aside. It is said that the provisions of Section 16 and 20 of Act, 1963 have not been properly observed and followed by Court below.

13. Per contra, Sri S. C. Verma, learned counsel appearing for defendant-1, supporting the judgment and decree, contended that on 03.10.2003 defendant-1 was present in the office of Sub Registrar but plaintiff did not proceed to execute sale deed and made a false averment before Court below that on 03.10.2003 defendant was not present in the office of Sub Registrar. This clearly shows that plaintiff-appellant was neither willing nor ready to execute sale deed within time stipulated in the contract for sale, nor had come to the court with clean hands and hence, has rightly been declined any relief by Court below.

14. We have heard learned counsel for the parties and perused record and also the relevant provisions applicable to issues raised before us and also various authorities on the subject.

15. For adjudication of this appeal, following points for determination needs adjudication:

(i) Whether time was an essence in the contract for sale dated 04.06.2003.

(ii) Whether plaintiff was willing and ready throughout for execution of sale deed and complied his part of obligations under the contract for sale and Court below has erred in law in recording otherwise finding.

(iii) Whether defendant-1 failed to execute sale deed by not clearing bank dues or otherwise and Court below in recording findings in favour of defendant-1 has erred in law.

(iv) Whether Court below has rightly denied relief observing provisions of Section 16 and 20 of the Act, 1963 correctly.

(v) Whether sale deed dated 30.01.2004 executed between defendants-1 and 2 is valid.

16. In order to examine first point it would be necessary first to consider the terms of agreement for sale dated 04.06.2003 i.e. Paper No.12-C.

17. The stipulation with respect to time for execution of sale deed reads as under:

"मैं विक्रेता बहक़ श्रीमती मीनराजपूत यह अनुबन्ध इन शर्तों के साथ तहरीर करता हूँ कि क्रेता श्रीमती मीना राजपूत उपरोक्त इस अनुबन्ध के तहरीर किये जाने के दिनांक से चार माह के अन्दर अवशेष धनराशि तीन लाख बहत्तर हजार रुपया का भुगतान कर मुझ विक्रेता से हक में बैनामा करा लेवे यदि क्रेता अनुबन्ध पत्र के दिए गए प्रपत्र के अंतर्गत मुझ विक्रेता का शेष भुगतान करने व बैनामा तहरीर करा सकने में कासिर रही तो मुझ विक्रेता को हक होगा कि मैं अपनी संपत्ति उपरोक्त किसी अन्य खरीददार के फरोख्त कर दूँ |"

"I, seller, execute this agreement in favour of Smt. Meena Rajpoot with conditions that aforesaid buyer, Smt. Meena Rajpoot shall get sale deed executed in her favour by paying me remaining sum of rupees three lacs and seventy two thousand within four months of execution of this agreement. If buyer unable to pay remaining sum and get sale deed executed in the manner provided by agreement to sale, then, I, seller shall have a right to sell my property aforementioned to some other buyer." (English Translation by Court)

18. The agreement further stipulates that in case there are circumstances making it difficult for proposed vendee to make balance payment and get sale deed executed within stipulated time it would get period extended through another agreement for which proposed vendor shall have no objection. The said stipulation reads as under:

"यदि कोई परिस्थिति ऐसी बनती है कि अनुबन्ध पत्र में मुददत के अंतर्गत मुझ विक्रेता का भुगतान व बैनामा तहरीर करा सकने में मजबूर है तो मुझ विक्रेता से दुसरे अनुबन्ध द्वारा समय बढावी लेवे इसमें मुझे कोई आपत्ति नहीं होगी |"

"If any such circumstance arises that buyer is not able to make payment to me and get sale deed executed within time frame provided in agreement to sale, then another agreement get executed for extension of time, to which I will have no objection." (English Translation by Court)

19. It further says, if proposed vendee is totally incapable to purchase the land, advance money paid to proposed vendor shall stand forfeited. Further if proposed vendor fails to comply with conditions of agreement, the proposed vendee shall have a right to get sale deed executed through Court.

20. It is well settled that in respect to contract of immovable property time is not essence of contract, subject to certain exceptions. The first is that it should be stipulated in contract itself that time is essence of contract. The second is that party considering time to be essence of contract should put other party on notice specifying that time is essence of contract. If both these conditions are not complied with, general rule is, that time is not essence of contract when contract relates to immovable property. The principle, however, is not applicable in the contract relating to re-conveyance but in the present case we are not concerned with the contract of re-conveyance.

21. In Gomathinayagam Pillai Vs. Pullaniswami Nadar, AIR 1967 SC 868, the Court said that "in a contract relating to sale of immovable property it will normally be presumed that time is not essence of contract".

22. In Govind Prasad Chaturvedi Vs. Hari Dutt Shastri, (1977) 2 SCC 539, the Court said that "the law is settled that fixation of period within which contract is to be performed does not make the stipulation as to time the essence of the contract. The language used in the agreement is not such as to indicate unmistakeable terms that the time is of the essence of the contract. The intention to treat time as of the essence of contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of contract".

23. In Hind Construction Contractors Vs. State of Maharashtra, (1979) 2 SCC 70 the Court said that, "where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract. If the contract includes clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week, such clauses would be construed as rendering ineffective express provision relating to time being of the essence of contract".

24. In Indira Kaur Vs. Sheo Lal Kapoor, (1988) 2 SCC 488, the Court in para 6 held that, "..... The law is well settled that in transactions of sale of immovable properties, time is not the essence of the contract".

25. A Constitution Bench of Supreme Court in Chand Rani Vs. Kamal Rani, (1993) 1 SCC 519 in para 19 of the judgement said as under:

"19. It is a well accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract ....; It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language."

26. In D. S. Thimmappa Vs. Siddaramakka, (1996) 8 SCC 365 the Apex Court has said, "It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always of the essence of the contract".

27. In Swarnam Ramachandran Vs. Aravacade Chakungal Jayapalan, (2004) 8 SCC 689 the Court said in para 12 that, "time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract is on the person alleging it.....; When the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case...; That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract".

28. In Balasaheb Dayandeo Naik(Dead) through LRs and others Vs. Appasaheb Dattatraya Pawar, (2008) 4 SCC 464, the Court has said as under:

"Even if we accept the recital in the agreement of sale (Ext. 18) that the sale deed has to be executed within a period of six months, there is an express of provision in the agreement itself that on failure to adhere to the time, the earnest money will be forfeited. In such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear that time was never intended by the parties to be of essence."

29. Considering the agreement in question in the light of exposition of law discussed above, we find that though parties agreed for execution of sale deed within a period of four months but it is further provided in agreement that in case proposed vendee is not in a position to make balance payment to proposed vendor and get sale deed executed within stipulated period, time can be extended by execution of another agreement itself. The forfeiture clause would operate only when proposed purchaser becomes completely incapable of purchase of land. There is no mention in the entire agreement that time is of the essence of contract and even otherwise stipulation regarding extension of time makes it very clear that time was not of essence of contract. We, therefore, answer question No.1 in favour of the appellant.

30. Questions No. 2, 3 and 4 can be dealt with together. In a suit for specific performance of a contract, Section 16 of Act, 1963 bars such enforcement if one or more conditions, stated therein, are satisfied. It reads as under:

"16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.-For the purpose of clause (c),-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

31. Clause (c) of Section 16 read with explanation (ii), makes it very clear that person seeking enforcement of contract has to aver and prove that he has performed or has always been ready and willing to perform essential terms of contract which are to be performed by him. In this regard plaintiff-appellant averred in paras 3, 4, 5 and 6 of plaint that she was always willing and ready to perform her part of obligations under contract but defendant-respondent failed to perform its part of contract. In this regard, in para 5 of plaint, plaintiff-appellant has said as under:

"यह कि वादिनी उक्तविक्रय अनुबन्धपत्र की शर्तों के अनुसार विक्रय पत्र करवाने के लिए शेष विक्रय मूल्य लेकर प्रतिवादी संo 1 के आश्वासन पर दिनांक- 3/10/2003को उप निबन्धक कार्यालय तहसील अमृतपुर में उपस्थित हुई परन्तु प्रतिवादी संo 1 उक्त तिथि को विक्रय पत्र निष्पादित करने के लिए उपनिबंधक कार्यालय में उपस्थित नहीं हुआ और न ही उसके द्वारा कोई सूचना ही दी गयी|"

"That on assurance of defendant-1, plaintiff had appeared in the Office of Sub Registrar, Tehsil Amritpur on 03.10.2003 with remaining sale price to get sale deed executed as per conditions of above mentioned agreement to sale but defendant-1 did not appear in the Office of Sub Registrar on the aforesaid date to execute sale deed and not even any information had been conveyed by him."

(English Translation by Court)

32. Defendant-1 has denied the contents of para 5 in para 5 of written statement dated 14.05.2007. However, in cross examination of her deposition as P.W.1, plaintiff-appellant has admitted that defendant-respondent, Ram Bharose Katiyar actually attended office of Sub Registrar on 03.10.2003 but did not execute sale deed. She has said as under:

"मेरे इकरारनामा कि अवधि में काफी बाद की यह तिथि है दिनांक 3/10/03 में वह राम भरोसे दोनो लोग निबन्धन कार्यालय उपस्थित हुए परन्तु रामभरोसे ने बैनामा नहीं किया दिनांक - 3/10/03 को उपस्थित होने की लिखित सुचना नहीं दी थी वार्तालाप हुई थी उनके घर गयी थी| हम 12:00 बजे निबन्धन कार्यालय पहुँच गये हैं मेरे पहुचने के 10-15 मिनट बाद रामभरोसे भी पहुँच गये थे मेरे साथ मेरे पति देवर रामभरोसे कटियार, सुभाष चन्द्र मिश्रा, शिवसरन आदि लोग साथ थे ये सब लोग मेरे साथ थे| रामभरोसे ने शाम 6:00 बजे तक बैनामा नहीं किया और नानुकुर करते रहे| ये नानुकुर की कार्यवाही के समय उपरोक्त लोगो व अलावा एक दो लोग और थे जिनके नाम नहीं मालूम|"

"This date is a quite later one from the period of my agreement. On 03.10.2003 both Ram Bharose and she had appeared in the Registry Office but Ram Bharose did not execute sale deed. I had not given given written information for appearance on 03.10.2003, I had visited his house and conversation had taken place, I had reached the Registry Officer at 12:00 o'clock, Ram Bharose had also come there after 10-15 minutes. My husband, brother in law Ram Bharose Katiyar, Subhash Chandra Mishra, Shiv Saran and other persons were with me. Ram Bharose did not execute sale deed till 6:00 p.m. and kept on refusing. At the time of this refusal, along with aforementioned persons, one or two more persons were also present. I do not know their names."

(English Translation by Court)

33. From her own statement it is thus admitted that averment made by plaintiff in para 5 of plaint that defendant-1 did not attend the office of Sub Registrar on 03.10.2003, is false and incorrect. In her cross examination she further said that she was ready with required money but then said that she had withdrawn Rs.1,35,000/- from Bank and rest money was with her but could not adduce any evidence to show that entire requisite money she possessed on that date. She stated about her presence with one or two other persons but their names were not disclosed.

34. Another witness PW 4, who is brother of plaintiff-appellant's husband, stated that defendant-1, Ram Bharose Katiyar had not come to the office of Sub Registrar on 13.10.2003. Firstly the date itself is incorrect and even if we treat it to be some clerical mistake, yet the statement of PW 4 is contradictory to the statement of PW 1 i.e. plaintiff-appellant herself.

35. Another witness of plaintiff-appellant i.e. Lakshman Singh Gahalwar, PW-2, in his affidavit admitted that Ram Bharose Katiyar, defendant-1 came to the office of Sub Registrar on 03.10.2003 but did not execute sale deed. Thus presence of Ram Bharose Katiyar in the office of Sub Registrar on 03.10.2003 was admitted by PW 2 also. The presence of Ram Bharose Katiyar- defendant-1 in the office of Sub Registrar on 03.10.2003 was admitted by Sri Kailash Babu Rajpoot, PW-3, husband of plaintiff-appellant. He further said that despite being present, defendant did not execute sale deed. He also admitted that disputed property was mortgaged with Bank of Baroda and this fact was well within his knowledge as well as his wife i.e. plaintiff-appellant. In cross examination PW 3 said as under:

"विवादित सम्पत्ति बैंक आफ बड़ौदा में बंधक थी इस बात की मुझे जानकारी थी| शायद मेरी पत्नी भी को इस बात की जानकारी थी कि विवादित सम्पत्ति बैंक आफ बड़ौदा के बंधक थी|"

"I was acquainted with the fact that disputed land was mortgaged with the Bank of Baroda. Probably, my wife was also acquainted with this fact that disputed land was mortgaged with the Bank of Baroda."

(English Translation by Court)

36. PW 5, Ram Prakash Awasthi, who also deposed in favour of plaint case, in cross examination, stated that Meena Rajpoot, plaintiff-appellant was asking defendant-1 to clear bank dues and thereafter execute sale deed. His deposition reads as under:

"उपनिबन्धक कार्यालय मीनाराजपूत व रामभरोसे के मध्य बातचीत बैंक के कर्ज की बात आयी थी मीनाराजपूत कह रही थी कि पहले बैंक का कर्ज अदा कर दो फिर बैनामा करो आज खुद कहा कि जो पैसा हम आपको शेष दे रहे हैं उसमे बैंक का पैसा अदा करने के बाद जो पैसा बचे आप ले लें लेकिन बैनामा कर दें | मीना राजपूत कहती थी कि पहले बैंक का कर्जा अदा करने के बाद शेष पैसा मैं आपको दूंगी |"

"Fact of dues was discussed by Meena Rajpoot and Ram Bharose at the Office of Sub Registrar. Meena Rajpoot was saying that first repay bank dues then execute sale deed. Today, itself said that repay bank dues with from remaining amount which we are paying to you and you can keep remaining money after payment of bank dues but execute sale deed. Meena Rajpoot used to say that she would pay him remaining amount after paying bank dues."

(English Translation by Court)

37. Trial Court, therefore, after considering evidence, including that which we have discussed above, has recorded a finding that on 03.10.2003 defendant-1 was present in the office of Sub Registrar but plaintiff was not willing to get sale deed executed and hence did not get it executed unless bank dues are cleared by defendant-1.

38. We find that though plaintiff was aware that disputed land was mortgaged with the bank, still in agreement no such stipulation was made that defendant-1 shall clear the dues of bank and get property released from equitable mortgage and thereafter shall execute sale deed. Further averment made in plaint that she was ready and willing to execute sale deed and on 03.10.2003 despite information defendant-1 did not visit office of Sub Registrar though she presented herself thereat with requisite money, has been found false from oral evidence adduced by plaintiff herself as well as her other supporting witnesses, wherefrom it is evident that defendant-1 was actually present in the office of Sub Registrar and plaintiff was not ready to get sale deed executed unless bank dues are cleared by defendant-1. We, therefore, find that Court below has rightly recorded finding that plaintiff-appellant failed to show that she was ready and willing to comply her part of obligations and in view of Section 16(c) of Act, 1963, specific performance could not have been enforced. Therefore, Court below has rightly denied relief of specific performance of contract. Issues 2, 3 and 4 are answered accordingly against the appellant.

39. So far as question no. 5 is concerned, we find that once we have held that plaintiff-appellant was rightly non suited in suit for specific performance, by Court below, subsequent sale deed executed on 30.01.2004 by defendant-1 in favour of defendant-2 cannot be faulted for the reason of existence of agreement of sale between plaintiff-appellant and defendant-1. Question-5 is, therefore, answered accordingly.

40. Lastly it is contended by the counsel for appellant that since defendant-1 still own and possess disputed land after excluding 0.76 acres of land which has been transferred by sale to defendant-2 and plaintiff-appellant is ready and willing to purchase remaining land also hence suit to that extent ought to have been decreed and in any case this Court can also grant relief.

41. Here we find that this request in substance seeks enforcement of agreement for sale dated 04.06.2003, though partially. Once we find that plaintiff is liable to non-suit on account of bar under Section 16(c) of Act, 1963, we do not find that prayer made before this Court can be accepted as this will amount to granting the same relief, though partially, which otherwise is not liable to be granted since plaintiff has failed to prove his readiness and willingness to perform his part of agreement and hence specific performance is barred by Section 16(c) of Act, 1963.

42. In view of above discussion we find that plaintiff-appellant is not entitled for any relief. We, therefore, confirm the judgement and decree passed by Court below and dismiss the appeal with costs.

Order Date :- 09.09.2015

Mustaqeem.