Smt. Renu Singh (Died And Deleted) ... vs Mahjabi Aajra Khanam
2025 Latest Caselaw 1263 Chatt

Chattisgarh High Court

Smt. Renu Singh (Died And Deleted) ... vs Mahjabi Aajra Khanam on 17 January, 2025

Author: Rajani Dubey

Bench: Rajani Dubey

                                     1




                                                 2025:CGHC:3146-DB


                                                             AFR

          HIGH COURT OF CHHATTISGARH AT BILASPUR

                     Judgment reserved on : 04-12-2024
                  Judgment delivered on : 17-01-2025

                            FA No. 345 of 2017

1 - Smt. Renu Singh (Died And Deleted) Through LRs as Per Honble
Court Order Dated 24-09-2024.


1(a) Smt. Sucharita Vaishnav, W/o Ramashankar Vaishnav, Aged
About 61 Years R/o A/86, Masanganj, Sindhi Mohalla Gali, Ward No.
32, Bilaspur (C.G.)


1(b) Sujit Singh, S/o Late Shri Mahadev Prasad Singh, Aged About 59
Years R/o Marwadi Line, Khaparganj, Reeta Drycleaner, Bilaspur
(C.G.)


1(c) Ajit Kumar Singh S/o Late Shri Mahadev Prasad Singh, Aged
About 51 Years R/o Ward No. 32, Masanganj, Sindhi Mohalla Gali,
Bilaspur (C.G.)
                                                         ... Appellants
                                  versus
Mahjabi Aajra Khanam D/o Late Abdul Haji Khan @ M. A. Khan, Aged
About 59 Years R/o Juni Line, Khaparganj Tahsil And District Bilaspur,
Chhattisgarh......
                                             ... Respondent/defendant
                                      2

For Appellants        :   Mr. Parag Kotecha, Advocate
For Respondent        :   Mr. Jameel Akhtar Lohani, Advocate.


                 Hon'ble Smt. Justice Rajani Dubey, J
               Hon'ble Shri Justice Bibhu Datta Guru, J


                             C A V Judgment

Per Rajani Dubey, J

Challenge in this appeal is to the legality and validity of the

judgment and decree dated 25.3.2017 passed by VI Additional District

Judge, Bilaspur in Civil Suit No.25A/2013 whereby the suit filed by the

appellant/plaintiff for specific performance of contract, declaration and

permanent injunction has been partly decreed. (Parties shall

hereinafter be referred to as per their description before the trial court.)

02. Case of the plaintiff, in brief, is that Nazul Sheet No.28, Plot

No.71/6, area 436 sqft and adjacent Nazul Sheet No.28, Plot No.113/2,

area 1519 sqft, on which a pacca house is constructed (hereinafter

referred to as "suit property") is the self-acquired property of father of

defendant namely Late M.A. Khan @ Abdul Haji Khan which was given

to the defendant by her father through Will dated 5.3.2002 and based

on that Will, the defendant got the suit property mutated in her name

and acquired the ownership thereof. Since the plaintiff and the

defendant were living in the same locality and they were duly

acquainted with each other, the defendant being in need of money

agreed to sell the suit property for Rs.10.50 lacs to the plaintiff.

Thereafter, a sale deed dated 11.12.2006 was executed before the

notary in presence of two witnesses and the defendant obtained

Rs.6.50 lacs as advance from the plaintiff. As per the agreement, rest

of the amount of Rs.4 lacs was to be paid to the defendant at the time

of registry of the suit property. The sale deed was agreed to be

registered within one year of the agreement. Despite the plaintiff's

readiness and willingness to execute the registered sale deed when

the defendant did not take any steps and kept on avoiding it, the

plaintiff on 2.7.2008 sent a registered legal notice to the defendant.

After receipt of the said notice, though the defendant again orally

assured the plaintiff in presence of plaintiff's husband and others for

execution of registry in her favour but later on evaded the same. The

plaintiff then again sent a registered legal notice on 9.12.2009 to the

defendant which was malafidely refused to be acknowledged by her. In

fact, the defendant is trying to sell the suit property at higher rate to

some other person and therefore, he is avoiding registry of sale deed

in favour of the plaintiff. Hence this suit.

03. In her written statement, the defendant contended that the

defendant never expressed her intention of selling the suit property as

there was no such need and even otherwise she is not entitled to sell it

all alone. No such agreement was ever executed with the plaintiff and

the agreement in question is forged and fabricated. The defendant in

reply to the legal notice has also stated that there is no such

agreement between them and as such, no question of return of money

etc. arises. Therefore, the present suit is liable to be dismissed with

cost.

04. Based on the pleadings of the respective parties and the

documents on record, the learned trial Court framed issues and after

appreciation of oral and documentary evidence, partly decreed the suit

of the plaintiff by the impugned judgment and decree holding that the

plaintiff is entitled to receive Rs.6.50 lacs with interest @ 6% p.a. from

the defendant. Hence this appeal.

05. Learned counsel for the appellant would submit that though the

learned trial court acknowledged the validity and enforceability of the

agreement between the parties and affirmed payment of Rs.6.50 lacs

as earnest money by the plaintiff to the defendant and also there is

evidence to show readiness and willingness on the part of the plaintiff

to perform her part of contractual obligation, however, instead of

decreeing the suit for specific performance, the learned trial Court

directed the defendant to refund the earnest money with interest @ 6%

p.a. only which is per se illegal and contrary to the material on record.

The plaintiff sent two registered legal notices to the defendant dated

2.7.2008 and 9.12.2009 demanding execution of the sale deed,

however, the defendant failed to give any satisfactory response to

either of the notices and made no efforts to fulfill her contractual

obligation. The non-performance of the agreement is entirely

attributable to the defendant whereas the plaintiff has fully complied

with her obligations including making payment of earnest money and

has consistently demonstrated her willingness and readiness to pay

the balance amount and complete the transaction.

He has further submitted that the defendant's failure to comply

with the trial Court's order directing her to refund Rs.6.50 lacs to the

plaintiff with interest further underscores her unwillingness to fulfill her

legal obligations. This defiance of the court's order reflects her overall

disregard for the law and substantiates the plaintiff's claim that the

defendant is solely responsible for the breach of contract. The

defendant has raised the issue of delay in demanding execution of the

contract stating that the plaintiff's notices and reminders went beyond

the stipulated period of one year mentioned in the agreement.

However, the principles laid down by the Hon'ble Supreme Court in

Motilal Jain Vs. Smt. Ramdasi Devi and others, AIR 2000 SC 2408

are directly applicable to the present case. The suit was filed well within

limitation, no third party rights was intervened and the plaintiff never

waived her rights under the contract, rather she actively pursued

performance of the agreement by consistently approaching the

defendant and demanding execution orally as well as in writing. Thus,

in the given set of evidence and the settled legal position in Motilal Jain

(supra), the appeal deserves to be allowed and consequently, the

plaintiff's suit be accordingly decreed.

Reliance is placed on the decision in the matters of P.

Daivasigamani Vs. S. Sambandan reported in AIR 2022 SC 5009.

06. Per contra, learned counsel appearing for the

respondent/defendant would contend that after receiving notice, the

defendant filed a reply denying all the adverse plaint averments and

stated that name of defendant's father is Abdil Hadi Khan whereas the

plaintiff wrongly mentioned it as Abdul Hazi Khan and filed the suit. The

defendant never expressed her intention to sell the suit property as

neither there was any such need nor was she entitled or had the

authority to sell the suit property alone as she has one brother and one

sister. No such agreement was executed between the parties and the

agreement presented by the plaintiff is a forged and fabricated

document and this fact was brought to the notice of the plaintiff while

replying to the legal notice sent through her advocate. Learned trial

Court after proper appreciation of the oral and documentary evidence

has rightly held that the plaintiff failed to prove her readiness and

willingness to perform her part of contractual obligation and further

partly allowed the suit directing the defendant to refund Rs.6.50 lacs to

the plaintiff which is an incorrect finding. Further, the rate of interest

awarded on the said amount is too high. Hence there being no

substance in this appeal, the same is liable to be dismissed.

Reliance has been placed on the decisions in the matters of

Central Bank of India Vs. Prajapati Singh, 2001 (II) MPWN 131;

Narmada Prasad Agrawal Vs. Omprakash, 2009 (I) MPWN 29; Van

Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit Vs.

Ramesh Chandra and others, 2010 AIR SCW 6761; Atla Sidda

Reddy Vs. Busi Subba Reddy, (2010) 6 SCC 666; JP Builders Vs.

A. Ramadas Rao, (2011) 1 SCC 429; Saradamani Kandappan Vs. S.

Rajlakhsmi and others, (2011) 12 SCC 18 and the order dated

28.11.2024 of the Hon'ble Supreme Court in SLP (Civil)

No.13933/2021 in the matter of R. Shama Naik Vs. G. Srinivasiah.

07. Heard learned counsel for the parties and perused the material

available on record.

08. It is not in dispute that the respondent/defendant is owner of the

disputed property. Learned trial Court based on the pleadings of the

respective parties framed the following issues:

dza वाद विषय निष्कर्ष

1. क्या प्रतिवादी ने वादग्रस्त सम्पत्ति 10,50,000 /-में "हां"

वादी को विक्रय करने का अनुबंध दिनांक 11.12.06 को निष्पादित किया?

2. क्या प्रतिवादी के द्वारा समय सीमा में वादी के पक्ष में "हां"

रजिस्ट्री का निष्पादन नहीं किया गया?

3. क्या वादी अपने पक्ष का अनुबंध पालन करने हेतु "सिद्ध नहीं"-"वादिनी हमेशा तत्पर रही है? प्रतिवादिनी से छः लाख पचास हजार रूपये मय व्याज प्राप्त करने की अधिकारिणी है"

4. सहायता एवं व्यय? निर्णय की "कं डिका-21 के अनुसार दावा आं शिक रूप से से स्वीकार किया गया।

The plaintiff filed agreement dated 11.12.2006 (Ex.P/1) which

contains the following conditions:

"(1) विक्रे ता माहदाशुदा कु ल भूमि व पक्के मकान को कु ल 10,50,000/- (दस लाख पचास

हजार रूपये) में विक्रय करने को सहमत है।

2) माहदाशुदा भूमि व मकान की पक्की लिखा-पढ़ी रजिस्ट्री क्रे ता अपने पक्ष में इस

इकरारनामा दिनांक से 1 वर्ष के भीतर अनिवार्य रूप से करा लेगी।

(3) इस इकरारनामा निष्पादन की तिथि को बतौर बयाना एवं अग्रिम की नगद राशि

6,50,000/- (छः लाख पचास हजार रूपये) क्रे ता से दो गवाहों के समक्ष विक्रे ता प्राप्त कर

चुकी है तथा शेष राशि निर्धारित समयावधि के भीतर रजिस्ट्री की लिखा-पढ़ी किए जाने के

समय विक्रे ता को अदा कर अपने पक्ष में रजिस्ट्री करा सके गी। क्रे ता द्वारा दी गई उक्त अग्रिम

बयाना की राशि माहदाशुदा भूमि व मकान के कु ल विक्रय मूल्य में समायोजित होगी।

(4) माहदाशुदा भूमि रहन-गहन, ऋण एवं भार से पूर्णतः मुक्त है यदि उक्तानुसार की किसी

परेशानी अथवा विवाद की स्थिति उत्पन्न होती है तो उसके लिये विक्रे ता उत्तरदायी होगी

तथा क्रे ता को ब्रिक्रे ता के विरूद्ध नुकसानी प्राप्त करने का अधिकार होगा।

(5) माहदाशुदा भूमि को क्रे ता अपने पक्ष में अथवा अपनी लिखित सहमति से किसी तीसरे

व्यक्ति के पक्ष में विक्रे ता से रजिस्ट्री एवं पक्की लिखा-पढ़ी विक्रे ता से करा सके गी किन्तु बगैर

क्रे ता की लिखित सहमति के विक्रे ता किसी अन्य व्यक्ति को माहदाशुदा भूमि वं मकान विक्रय

नहीं कर सके गी अन्यथा विक्रे ता के विरूद्ध सक्षम न्यायालय में कार्यवाही कर अपने पक्ष में

रजिस्ट्री कराने हेतु क्रे ता स्वतंत्र रहेगी।

(6) माहदाशुदा भूमि के विक्रय पत्र के पंजीयन से संबंधित समस्त व्यय व खर्चे क्रे ता वहन

करेगी।

उपरोक्त शर्तों के अधीन विक्रे ता एवं क्रे ता आपस में सहमत होकर, बिना किसी डर, दबाव

अथवा लालच के , इंकरारनामा को भली-भाँती पढ़कर, समझकर, दो गवाहों की उपस्थिति में

यह विक्रय का इकरार आज दिनांक 11.12.06 को मुकाम बिलासपुर में अपना-अपना

हस्ताक्षर कर निष्पादित करते हैं ताकि सनद रहे व वक्त जरूरत पर काम आ सके ।"

09. As per the plaintiff, she was always ready and willing to perform

her part of contractual obligation. PW-1 Renu Singh states in para 10

of her affidavit filed under Order 18 Rule 4 of CPC that she is still ready

to get the sale deed in respect of the suit property executed in her

favour after payment of remaining amount to the defendant but the

defendant has been evasive since beginning. However, the defendant

denied execution of any such agreement and also denied her signature

on the agreement. Further, as per plaintiff, she sent first notice to the

defendant on 2.7.2008, however, she did not file any copy of such

notice before the learned trial Court. She filed notice dated 9.12.2009

(Ex.P/5) and in para 2 of this notice, it is written that she sent a notice

on 2.7.2008 also. Anil Kumar Shukla (PW-2) who is a witness to the

agreement (Ex.P/1) admits his signature from A to A and B to B part.

PW-3 Sujeet Singh, who is son of the plaintiff Renu Singh, also

supported the statement of the plaintiff. PW-4 Rajkumar Mishra, Notary,

has also supported execution of agreement (Ex.P/1) and admitted his

seal on this document. PW-6 Sunanda Denge, Handwriting Expert,

opined that signature on Ex.P/1 is of the defendant.

10. Respondent/defendant Mahjabi Ajra Khanam stated that her

father did not execute any Will in her name in respect of the suit

property and she also did not execute any agreement with the plaintiff

for sale of the suit property as there was no such need to sell it and

even otherwise, she is not the sole owner of this property but it is the

joint property of her mother, sister, brother and herself. She also denied

receipt of earnest money of Rs.6.50 lacs from the plaintiff.

11. Learned trial Court after appreciation of oral and documentary

evidence adduced by both the parties found that the agreement Ex.P/1

was executed by both the parties and the defendant received Rs.6.50

lacs from the plaintiff as earnest money. The defendant has not

challenged this finding by filing any cross-appeal. So, it stands proved

by the plaintiff that the defendant executed an agreement Ex.P/1 and

obtained Rs.6.50 lacs as earnest money. However, the learned trial

Court also found that the plaintiff has failed to prove the fact that she

was always ready and willing to perform her part of the agreement.

12. As per the agreement Ex.P/1, registry of the sale deed was to be

positively got done by the purchaser within one year from the date of

the agreement. The agreement is executed on 11.12.2006 and as

such, registry was to be done on or before 11.12.2007. Though the

plaintiff states to have sent the first notice on 2.7.2008 to the defendant

but no such notice has been filed before the learned trial Court. The

plaintiff only filed postal receipt and acknowledgment (Ex.P/2) and the

defendant denied the fact that she received any notice dated 2.7.2008.

The plaintiff filed copy of acknowledgment of notice dated 9.12.2009

(Ex.P/5). However, she failed to prove the fact that prior to sending this

notice, any other notice was sent to the defendant.

13. The Hon'ble Supreme Court in the matter of R. Shama Naik

(supra) observed from paras 9 to 13 as under:

"9. There is a legion of precedents on the subject of readiness and willingness.

10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.

11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.

12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.

13. The High Court in first appeal upon appreciation of the evidence on record both oral and documentary has arrived at the conclusion that the plaintiff has failed to establish that he was always ready and willing to perform his part of the contract."

14. In the present case also, the plaintiff only stated that she

requested the defendant many a time for execution of registry but the

defendant evaded the same. As per the plaintiff herself, she sent the

first notice on 2.7.2008 i.e. more than six months after expiry of the

period fixed for execution of registry and about one year and six

months of the agreement. Even otherwise, as already observed above,

there is no such notice produced on record by the plaintiff. Further, the

plaintiff did not show her financial capacity before the learned trial

Court to substantiate her stand that she was ever ready to perform her

part of contract. Accordingly, the learned trial Court rightly found that

she failed to prove her readiness and willingness to perform her

contractual obligation and decided Issue No.3 against the plaintiff and

in favour of the defendant.

15. While dealing with the issue of recovery of money in a specific

performance of contract, this Court in the matter of Priyabratta

Choudhary & Ors. V. Jayshankar Sahu [Neutral Citation

No.2024:CGHC:42295-DB ], held in para 13 as under :-

"13. Vide judgment dated 25.07.2023 in the matter of Mohammad Asraf Vs. Smt. Rubina Bano passed in FA No. 85 of 2018, this Court observed and held in paras 20, 21 and 22 as under:-

"(20) In Satish Batra v. Sudhir Rawal reported in 2013 (1) SCC 345 Hon'ble Supreme Court held in para 15 that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit and that part payment of purchase price cannot be forfeited unless it is a guarantee for the due

performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply. (21) The Supreme Court in India Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161 discussed different case laws and observed that unjust enrichment is the unjust retention of a benefit to the loss of another. Few of paras I.e., para nos. 152, 153, 154, 155 & 156 are relevant and quoted below:

152. 'Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

153. Unjust enrichment, "the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer and even though he may have received [it] honestly in the first instance."

(Schock v. Nash (72 A 2d 217) Delware 1999), 232-33.

154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus "......(A)ny civilized system of law is bound to provide remedies for cases to what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-

contract or restitution."

155. Lord Denning also stated in Nelson Larholt, [1947] 2 All ER 751 as under:-

".......It is no longer appropriate, however, to draw a distinction between law and equity.

Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires."

156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment."

(22) Though learned trial Court dismissed the suit for specific performance of contract and held that the forfeiture of advance amount was correct but the fact remains in view of the judgments quoted above that the total amount of Rs.4,50,000/- was retained by the respondent / defendant. From the evidence available on record it does appear that payment was made only towards part-payment of consideration.

Therefore, the plaintiff has a right of restitution and he cannot be deprived of the amount paid to him to the defendant as the facts apparent on the surface of record fortifies the said logic. The Supreme Court also observed that the restitution and unjust enrichment have to be viewed in two stages i.e. pre- suit and post suit. In the pre-suit position the amount is not returned and also in the post- suit the amount is still with the defendant."

16. In light of above decisions, in the given facts and circumstances

of the case and the overall evidence on record, the learned trial Court

rightly dismissed the suit of the plaintiff for specific performance of

contract and directed the defendant to refund earnest money of

Rs.6.50 lacs to the plaintiff with 6% interest which is strictly in

consonance with law. There is no such illegality or infirmity in the

impugned judgment and decree warranting any interference by this

Court. The judgments relied upon by learned counsel for the

appellants being distinguishable on facts are of no help to him. Hence,

the present appeal being without any substance is liable to be and is

hereby dismissed.

Let a decree be drawn up accordingly.

                                  Sd/                                           Sd/
                             (Rajani Dubey)                             (Bibhu Datta Guru)
                                 Judge                                         Judge

  MOHD   Digitally signed
  AKHTAR by MOHD
         AKHTAR
  KHAN   KHAN

Khan