Radhabai Khanduji Suryawanshi vs Rajendra Vinayakrao Dhule
2007 Latest Caselaw 282 Bom

JUDGMENT

Naik V.A., J.

1. In view of the order passed by this Court on 15th January, 2007, this First Appeal is taken up for final hearing with the consent of the learned Counsel for the parties.

2. The appellant is the original defendant. A suit was filed by the plaintiff/respondent for specific performance of contract and by amending the plaint, the plaintiff also sought the possession of the suit property.

3. It was pleaded by the plaintiff that in view of an agreement of sale dated 30.7.2002, the defendant agreed to sell 2.66 Hectares of land to the plaintiff for a total consideration of Rs. 2,99,250/- at the rate of Rs. 45,000/-per acre. The plaintiff paid an amount of Rs. 50,000/- to the defendant as earnest money. The parties agreed to execute the sale-deed on or before 30.10.2002 after receiving the balance amount of Rs. 2,49,250/- at the time of execution of the sale-deed. It is then pleaded by the plaintiff that it was agreed between the parties that the necessary document, i.e. 7/12 extract and other documents, required for the parties to execute the sale-deed, would be supplied by the defendant within the stipulated period. It is then pleaded that in the 3rd week of August, 2002, the plaintiff approached the defendant and requested the defendant to supply the 7/12 extract and necessary documents. But, the defendant avoided to do so on one pretext or the other. The plaintiff thereafter informed the defendant that he was ready to pay the balance consideration and get the sale-deed executed and requested the defendant to attend the office of the Sub Registrar, Nagpur but, the defendant told the plaintiff that the 7/12 extracts and other documents were yet to be received and would be supplied to the plaintiff as soon as they were received. It is the case of the plaintiff that the plaintiff thereafter approached the defendant from time to time requesting that the sale-deed be executed but, the defendant persistently told the plaintiff that the necessary documents were yet to be received. Since the plaintiff apprehended that the defendant was desirous of selling the suit field to a third party, the plaintiff issued a communication/notice to the defendant on 11.9.2002 requesting the defendant to supply the necessary documents and execute the sale-deed in favour of the plaintiff. The notice/communication dated 11.9.2002 was returned to the plaintiff as not claimed. A legal notice was again issued on 7.10.2002 but, the said notice was also returned as not claimed. The plaintiffs pleaded that he was ready and willing to perform his part of the contract but, since the defendant was not ready to perform his part, the plaintiff instituted the suit against the defendant for specific performance of contract.

4. The defendant filed his written statement and denied the claim of the plaintiff. The defendant raised some preliminary objection about the authenticity of the alleged agreement of sale dated 30.7.2002. It was then pleaded by the defendant that the plaintiff took the advantage of the illiteracy of the defendant and fraudulently obtained a thumb impression of the defendant on a stamp paper without disclosing the nature of the document and thereby committed breach of trust. According to the defendant, though the document was styled as agreement of sale, it did not amount to a legal contract in view of the fact that the document dated 30.7.2002 was a fraudulent and fabricated document. The defendant admitted that he was the owner of the suit property but, denied that he had entered into an agreement of sale with the plaintiff at any point of time, much less on 30.7.2002. The other pleadings about the date of the execution of the sale-deed, the agreement to supply the 7/12 extracts were denied by the defendant. It was pleaded by the defendant that in the month of June-2002, the defendant was in urgent need of money as she had borrowed money from third parties for performing the marriage of her daughter by name Leela in the year 2001. Since the borrowers were demanding their money, the defendant approached the plaintiff through her relative Shri Suryabhan Bagde for a hand loan and the defendant was advanced a hand loan of Rs. 5,000/-. After the grant of advance of Rs. 5,000/- by the plaintiff, the plaintiff asked the defendant to acknowledge the same by putting her thumb impression on a stamp paper of Rs. 100/- which was already written upon and brought by the plaintiff himself. According to the defendant, she, without verifying the contents of the document, blindly and in good faith put her thumb impression acknowledging the receipt of Rs. 5,000/- as a hand loan. It is the case of the defendant that the hand loan was payable within a period of 4-5 months. Though the defendant went to the plaintiffs house for repaying the amount on 6.10.2002, according to the defendant, the plaintiff flatly refused to accept the same and asked the defendant to execute the sale-deed of the agricultural field in favour of the plaintiff. It is further pleaded that the defendant was shocked and surprised when she came to know from the plaintiff that 'She had executed an agreement of sale' of the suit field.

5. According to the defendant since no agreement of sale was executed between the parties, there was no question of promising to give relevant documents in respect of the suit property, more so when the public documents in the nature of 7/12 extract could have been easily available to the plaintiff within a couple of hours. The defendant then pleaded that the property described in the plaint was the only source of livelihood for the defendant and her family and could provide the succour to the family members in the future. It was also pleaded that the defendant could not have even thought of selling the agricultural field as the children of the defendant were dependent on the source of agricultural income derived from the suit property. Since the contract itself was denied, according to the defendant, there was no question of being ready and willing to perform the part of contract by executing the sale-deed in favour of the plaintiff. The fact about the issuance of the legal notice and the refusal to accept it was also denied. It was lastly pleaded that the value of the suit property was approximately more than Rs. 1,00,000/- per acre and the property could not have been sold at the rate of Rs. 45,000/ - per acre.

6. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and after settling the same, the parties were provided an opportunity to tender the documentary and oral evidence on record. The agreement dated 30.7.2002 was produced on record at Exh. 22. Certain other documents, i.e. an application allegedly made by the defendant to the Patwari for grant of certified copy, the communication issued by the plaintiff to the defendant on 11.9.2002 for execution of sale-deed, the notices issued by the Counsel for the plaintiff on 7.10.2002 and 15.11.2002 the 7/12 extract, Exh.23 were also produced by the plaintiff on record. The plaintiff examined himself and one Suryabhan Pralhadji Bagde who was the attesting witness to the agreement dated 30.7.2002. The defendant examined herself and also examined her sister by name Kusum Arjun Patil.

7. On an appreciation of evidence on record, the trial Court decreed the suit of the plaintiff and directed the defendant to execute the sale-deed in respect of the suit property within two months from the date of the judgment dated 27.7.2006. In case the defendant failed to execute the sale-deed within the given time, the plaintiff was directed to deposit the balance amount of Rs. 2,49,250/ - in the Court within 60 days and the sale-deed was directed to be executed in favour of the plaintiff through the Court at her instance on the deposit of aforesaid amount. Since the defendant did not execute the sale deed in favour of the plaintiff within a period of 60 days from the date of the judgment dated 27.7.2006, the plaintiff deposited the amount of Rs. 2,49,250/- before the executing Court as per the directions of the trial Court dated 27.7.2006. The appellant/defendant has challenged the judgment dated 27.7.2006 in this First Appeal.

8. Shri C.F. Bhagwani, learned Counsel for the appellant, submitted that the trial Court was not justified in granting the discretionary relief of specific performance of contract in favour of the plaintiff. It was submitted on behalf of the appellant that the plaintiff did not approach the trial Court with clean hands and a bare perusal of the document dated 30.7.2002 reveals that the document is a fictitious document fabricated at the instance of the plaintiff. The Counsel for the appellant then submitted that the suit for specific performance of contract was also liable to be dismissed as the last date for execution of the agreement of sale was 30.10.2002 and the plaintiff, without waiting for the expiry of the last date for performance of the contract, hurriedly approached the Court on 30.10.2002 itself. It is then canvassed on behalf of the appellant that even assuming but not admitting that the agreement of sale was executed on 30.7.2002, a perusal of the said document reveals that the defendant had not agreed to supply the 7/12 extract or other documents to the plaintiff before the execution of the sale-deed. Taking the Court through the alleged agreement of sale dated 30.7.2002, Exh.22, the Counsel for the appellant pointed out that it was clear from the document that it was not properly notarised. The Counsel for the appellant submitted that there was no identification of the parties by a Counsel or any other person. The Counsel for the appellant then submitted that the seal of Notary was also not in accordance with law as the Notary had not stated that either he had identified the parties or the parties were identified by the Counsel. The Counsel for the appellant then submitted that on an overall reading of the documentary evidence as well as the oral evidence tendered by the parties, it was apparent that the agreement of sale was not executed between the parties on 30.7.2002 and a show was being made that the document was actually executed before the Notary on 30.7.2002. The Counsel for the appellant submitted that the plaintiff had himself produced the 7/12 extract, and therefore, the plea raised by the plaintiff about the non supply of the 7/12 extract to the plaintiff was totally incorrect as the plaintiff was already in possession of the 7/12 extract. It was then submitted on behalf of the appellant that the plaintiff had neither pleaded nor proved about the availability of funds for performing his part of the contract for getting the sale-deed executed in his favour. It was then submitted on behalf of the appellant that the trial Court also did not frame any issue about the readiness or willingness of the plaintiff to perform his part of the contract. It was then submitted on behalf of the appellant that the conduct of the plaintiff and the surrounding circumstances clearly showed that the plaintiff was not entitled to seek the discretionary relief of specific performance.

9. The Counsel for the appellant relied on the decisions reported in A.I.R 2007 M.P. 6 H.P. Pyarejan v. Desappa and Ors. and N.P. Thirugnanam v. R. Jagan Mohan Rao to substantiate his submissions. Lastly, the Counsel for the appellant submitted that it is necessary for the plaintiff to succeed on his own case and the suit of the plaintiff cannot be decreed on the weakness of the case of the defendant.

10. Mrs. Chitnavis, learned Counsel for the respondent, supported the judgment passed by the trial Court and submitted that this Court cannot interfere with the discretion exercised by the trial Court in granting a decree for specific performance in favour of the plaintiff. It was submitted on behalf of the respondent that the submissions made on behalf of the appellant about the notarised document not being in the proper form, were not raised by the defendant in his pleadings. According to the Counsel for the respondent, the plaintiff was a vigilant purchaser and had, therefore, immediately instituted the suit on 30.10.2002 on noticing that the defendant was not ready and willing to perform his part of the contract by executing the sale-deed in favour of the plaintiff. It was then canvassed on behalf of the respondent that the 7/12 extract filed by the plaintiff in the Court was an old one and the plaintiff was referring to a recent 7/12 extract which was necessary for execution of a sale deed. It was further submitted on behalf of the respondent that though the appellant blamed the conduct of the plaintiff, no specific instances were brought to the notice of this Court to show that the conduct of the plaintiff was blameworthy. It was further canvassed on behalf of the respondent that the plaint pleadings as well as the oral and documentary evidence tendered by the plaintiff showed that the plaintiff was ready and willing to perform his part of the contract, and therefore, the suit was rightly decreed by the trial Court though a specific issue about the readiness and willingness of the plaintiff was not framed. According to the respondent, the suit could not be said to be a premature suit and to substantiate the aforesaid submission, the Counsel for the respondent relied on the judgments reported in AIR 1983 ALLAHABAD 310. and Prog Datt v. Smt. Saraswati Devi and Anr. . On the basis of the amended plaint, the Counsel for the respondent submitted that the relief of possession should also follow the relief of specific performance of contract and for the aforesaid submission, the Counsel for the respondent relied on a decision reported in 2002 (2) Civil Law Journal 305 and 1998 A.I.H.C. 1055 (Kerala). Lastly, it was pointed out on behalf of the respondent that it was admitted by the defendant that the loan amount was advanced by the plaintiff in the month of June and the stamp paper was purchased at a subsequent point of time and this showed that the agreement of sale was not executed after obtaining the thumb impression of the defendant on a blank stamp paper at the time of advancing of the loan.

11. On the submissions made on behalf of the parties, the following points arise for determination in this First Appeal. I. Whether the plaintiff was entitled to the discretionary relief of specific performance of contract ? II. Whether the decree passed by the trial Court is just and proper ?. III. Whether the plaintiff is entitled to the possession of the property?

12. To answer the aforesaid points for determination, it is necessary to consider the relevant evidence tendered by the parties on the aforesaid issues. In short, it is the case of the plaintiff that the plaintiff and defendant entered into an agreement of sale on 30.07.2002 whereby the defendant agreed to sell the suit property to the plaintiff @ Rs. 45,000/- per acre. The last date for the execution of sale-deed was 30.10.2002, and though, the plaintiff was ready and willing to perform his part of the contract and had approached the defendant from time to time for seeking the execution of the sale-deed, the defendant failed to execute the same. The aforesaid case of the plaintiff was specifically denied by the defendant who pleaded that the agreement of sale dated 30.07.2002 was never executed by the defendant and the plaintiff had taken the thumb impression of the defendant on a blank stamp paper after advancing a loan of Rs. 5,000/- to the defendant. According to the defendant, the suit property was the only property belonging to the family of the defendant and the survival of the defendant was possible only on the income derived from the suit property. According to the defendant, though the defendant was willing to return the amount advanced by the plaintiff to the defendant, the plaintiff refused to accept the same and filed the suit for specific performance of contract.

13. To consider the submissions made on behalf of the parties, it is necessary to consider the document Exh.22 which is an agreement of sale dated 30.7.2002. The document appears to be a notarised document. There is much force in the submission of the Counsel for the appellant that the document is not signed by the parties before the notary. On a perusal of the document, it is apparent that the notarisation of the document is not in the proper form. The parties are not identified by a Counsel or an Advocate. There is no mention in the document that the Counsel has identified/solemnly affirmed that the parties signing the document are personally known to him. In fact, no advocate has signed the document Exh.22. It is also conspicuous to note that though it is stated by the Notary that his term expires on 25.1.2006, the registration number of the Notary is not stated either on the seal or on any other part of the document. The registration number of a notarised document also normally appears on the document but, the serial number of this notarised document, i.e. Exh.22, is also not mentioned on the document. Further the attesting witness Suryabhan Bagde did not depose in his examination-in-chief that the document was signed by the parties before the Notary. It is known to one and all that the document which is signed earlier cannot be notarised at a subsequent point of time. The parties have to sign the document before the Notary Public. Not only this, but the plaintiffs evidence is also conspicuously silent on this point. Though the attesting witness and the plaintiff have stated that the document was signed by the plaintiff on 30.7.2002 and the defendant had endorsed her thumb impression on the said document, both the witnesses for the plaintiff have not deposed that the thumb impression of the defendant and the signature of the plaintiff was obtained before the Notary and the document was executed before the Notary. It is also worth noting that though the plaintiff admitted in his cross-examination that the defendant could sign, the document Exh. 22 does not bear the signature of the defendant and bears her thumb impression only. Thus, it is highly unlikely that the document was executed before the Notary though the document is shown to have been notarised. The absence of the identification or solemn affirmation by an advocate that he knows and identifies the party would clearly show that the document has been notarised without following the proper procedure for notarisation thereof. It is not possible to hold that a document would be notarised without the identification of the parties who have executed the same. Moreover, there is no whisper in the oral evidence of the plaintiff and the attesting witness Shri Suryabhan Bagde that the document was indeed executed before the Notary on 30.7.2002. The aforesaid facts lead to the only conclusion that the document was not signed by the parties before the Notary and it appears that the thumb impression of the defendant existed on the document on the day it was brought to the Notary for notarisation. The plaintiff has definitely not approached the Court with clean hands.

14. Now assuming that the document was actually executed by the plaintiff, it would be further necessary to consider as to whether the plaintiff was entitled to a decree of specific performance of contract. It is reiterated by the plaintiff in the plaint that the 7/12 extract was essential for execution of the sale-deed and the defendant was not ready to handover the 7/12 extract to the plaintiff for evading the execution of the sale-deed in favour of the plaintiff. It is now necessary to consider as to whether such term was incorporated in the agreement of sale dated 30.7.2002. A reading of the entire document shows that the aforesaid condition was not incorporated in the agreement of sale. There is no stipulation in the agreement of sale that the defendant agreed to handover the 7/12 extract and the other documents to the plaintiff. It conspicuous to note that the plaintiff himself filed the 7/12 extract in the instant suit which clearly shows that the plaintiff was in possession of the 7/12 extract at the relevant time. The 7/12 extract shows that it was received on 19.8.2002. The document is marked as Exh. 23. Thus, the case of the plaintiff is falsified by the aforesaid document which is filed by the plaintiff himself in the trial Court. Moreover, Exh.33, the application addressed by the defendant to the Patwari also shows that the defendant asked the Patwari to handover a copy of the 7/12 extract to the plaintiff. This document is produced by the plaintiff on record but the defendant has denied the same. The submission made on behalf of the respondent that the 7/12 extract in possession of plaintiff was an old one and the recent 7/12 extract was required for the execution of the sale-deed cannot be accepted as the aforesaid case is not pleaded by the plaintiff. It is not case of the plaintiff that the defendant was not handing over a recent 7/12 extract as it was necessary to produce the recent 7/12 extract at the time of execution of the sale-deed. The aforesaid case is tried to be made out for the first time at the time of arguments. Thus, it appears from the documents at Exh.22 and Exh.23 that the plaintiff was in possession of the 7/12 extract and the plaintiff had mischievously pleaded in the plaint that the defendant was not ready and willing to handover the 7/12 extract to the plaintiff with a view to avoid the execution of the sale-deed. The entire case of the plaintiff is based on the aforesaid fact of non supply of the necessary document by the defendant to the plaintiff before the date of execution of the sale deed, i.e. 30.10.2002.

15. It is further notable that though the plaintiff has pleaded that the plaintiff was ready and willing to perform his part of the contract, the plaint is silent about the financial capacity of the plaintiff to pay the balance consideration. Similarly, the evidence of the plaintiff is also silent in that regard. In a suit for specific performance of contract, the plaintiff is not only required to plead and prove the willingness to perform the part of the contract, but also the readiness for the same. The readiness can be substantiated only by leading evidence in that regard. In the absence of any evidence about the availability of funds with the plaintiff to perform his part of the contract on 30.10.2002, the trial Court was not justified in granting a decree in favour of the plaintiff without considering the vital aspect about the readiness of the plaintiff to perform his part of the contract. It is surprising that the trial Court had not framed an issue about the readiness and willingness of the plaintiff to perform the part of the contract, specially when it is necessary to do so in a case of specific performance of contract.

16. The facts leading to the conclusion, that the document was not executed by the parties on 30.7.2002 before the Notary as also the conduct of the plaintiff who pleaded that the defendant evaded to supply the 7/12 extract when the aforesaid document was in possession of the plaintiff before the filing of the suit on 30.10.2002, are by themselves sufficient to deny the relief of specific performance of contract in favour of the plaintiff. Though the relief of specific performance of contract is a discretionary relief, it is well settled that the discretion has to be exercised by the Court on the settled principles of law and specially the principles of Equity, Fair Play and Good Conscience. As already noted hereinabove, the document was not executed before the Notary though it was notarised by the Notary. The other documents produced by the plaintiff at Exhs.23 and Exh.33 also clearly show that the plaintiff had received the 7/12 extract prior to the institution of the suit. Thus, the case of the plaintiff was based on falsehood.

17. While granting the relief of specific performance, it was also necessary for the Court to consider the hardship which could be caused to the defendant in case the decree is granted in favour of the plaintiff. The evidence of the plaintiff shows that the plaintiff is an agriculturist. The pleadings and the evidence of the defendant further shows that the suit land was the only land owned and possessed by the defendant. In fact, the defendant has pleaded that the entire family of the defendant which comprises of herself and her children were able to survive on the income derived from the suit property. The trial Court lost sight of this vital aspect while granting the relief of specific performance in favour of the plaintiff. The trial Court ought to have applied the tests laid down under Section 20 of the Specific Relief Act, 1993 while exercising the discretion in favour of the plaintiff by considering the question as to whether it would be fair, just and equitable to grant the relief. This is an additional reason for refusing the relief of specific performance of contract.

18. One more important aspect was also overlooked by the trial Court. The alleged agreement of sale dated 30.07.2002 stipulated that the sale-deed was to be executed on or before 30.10.2002. It is noteworthy that the plaintiff filed the suit on 30.10.2002 itself. This clearly shows that the plaintiff was determined to file the suit without waiting for the expiry of the last date for execution of the sale-deed. Since the suit was filed on 30.10.2002, it is apparent that the suit was drafted and prepared at an earlier point of time. The pleading of the plaintiff that the plaintiff was present before the Sub Registrar on 30.10.2002 is clearly a premature and cannot be a true statement of fact as the suit itself was filed on 30.10.2002. Since it is presumed that the plaint was drafted earlier, it is apparent that the plaintiff was bent upon filing the suit for the reasons best known to the plaintiff himself. The false plea of not making the 7/12 extract available to the plaintiff further fortifies this conclusion. The judgment reported in A.I.R. 1983 ALLAHABAD 310 AND A.I.R. 1982 ALLAHABAD 37 would not be of any assistance to the plaintiff as they are not applicable in the facts of the case.

19. Though the case advanced on behalf of the defendant that the defendant had secured a loan of Rs. 5,000/- from the plaintiff, is rightly negatived by the trial Court in view of the scanty and discrepant evidence in that regard, the suit of the plaintiff cannot be decreed merely because the defendant has failed to prove that the plaintiff had not obtained the thumb impression of the defendant on the document towards the security of the loan. The plaintiff has to succeed on the merits of his own case and cannot seek a decree in his favour merely on the basis of the lacuna or infirmities in the case advanced by the defendant, specially in a suit for specific performance of contract. It is well settled that a decree for specific performance of contract need not be granted merely because it is lawful to do so. The Court has to consider the facts of the case, the surrounding circumstances, the conduct of the parties and the principles laid down by the Courts from time to time in that regard. In the instant case, it cannot be said that the plaintiff has proved that the defendant executed the agreed of sale in favour of the plaintiff on 30.7.2002.

20. In view of the fact that the plaintiff has failed to prove the execution of the document Exh.22 by the defendant, the trial Court was not justified in granting a decree of specific performance in favour of the plaintiff. Since the plaintiff is not entitled to a decree of specific performance, a decree of possession of the property also cannot be passed in favour of the plaintiff. The trial Court committed an error in decreeing the suit of the plaintiff by mainly relying on 7/12 extract at Exh.23, the agreement of sale at Exh.22 and the application at Exh.33 for holding that the plaintiff had entered into an agreement to purchase the suit field for a total consideration of Rs. 2,99,250/- and had paid an amount of Rs. 50,000/- to the defendant on 30.7.2002. the Court ignored the material infirmities and irregularities in the notarised document and erroneously held that the agreement of sale itself shows the genuineness of the document because it is executed at Tahsil Office of Hingna and the seal of the Notary and signature of the parties were taken on the document. The trial Court further erred in placing reliance on the oral evidence of PW 2 Suryabhan Bagde to hold that the agreement of sale was executed by the defendant on 30.7.2002 without considering the material omissions in the evidence of this witness about the execution of the document before the Notary.

21. For the reasons aforesaid, it is clear that the plaintiff was not entitled to a decree for specific performance of contract. The trial Court grossly erred in exercising the discretion in favour of the plaintiff by relying on the document Exh. 22 and Exh. 33 which were on their face suspicious. The reasons recorded by the trial Court for holding that the plaintiff has proved the execution of the agreement of sale dated 30.7.2002 are not just and proper.

22. In the facts of the case, the trial Court ought not have exercised the discretion in favour of the plaintiff by granting a decree for specific performance of contract. The appeal, therefore, succeeds and is allowed. The judgment and decree passed by the trial Court on 27.7.2006 is hereby set aside. In the facts of the case, there would be no order as to costs.

23. The oral request made on behalf of the respondent/plaintiff, seeking a stay to this judgment for a period of six weeks is, however, rejected as by this judgment this Court has merely reversed the judgment passed by the trial Court in favour of the plaintiff in a suit for specific performance of contract and grave and serious prejudice would not be caused to the plaintiff if the prayer is not granted.