Chattisgarh High Court
Padam Jain vs Hemrai (Died) Through Legal Heirs- on 17 July, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:33698-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 24-04-2025
Judgment delivered on : 17-07-2025
FA No. 262 of 2018
1 - Padam Jain S/o Shri Gyanmal Jain Aged About 31 Years R/o
Gawlipara, Durg, Tahsil And District Durg, Chhattisgarh
2 - Roshan Jain S/o Shri Sohanraj Jain Aged About 36 Years R/o
Ganjpara, Durg, Tahsil And District Durg, Chhattisgarh.
... Petitioners/plaintiffs
versus
1 - Hemrai (Died) Through Legal Heirs- As Per Honble Court Order
Dated- 17-11-2021 And 27-04-2022
1.1 - Smt. Jhanna Bai W/o Late Shri Hemrai Aged About 55 Years
1.2 - Som Bai, D/o Hemrai, Aged About 32 Years
1.3 - Rameshwari D/o Hemrai, Aged About 30 Years
1.4 - Hemlata, D/o Hemrai, Aged About 28 Years
1.5 - Ashwini S/o Hemrai, Aged About 26 Years
1.6 - Mahendra, S/o Hemrai, Aged About 24 Years
All residents of Pulgaon, Tehsil and District Durg (CG)
2 - Pukhraj S/o Late Gajadhar Sahu Aged About 45 Years
3 - Khemraj S/o Late Gajadhar Sahu Aged About 39 Years
2
No. 2 & 3 are resident of Village-Pulgaon, Durg, Tahsil And District
Durg.
4 - Smt. Kunti Bai (Died) Through LRs As Per Honble Court Order
Dated 06.08.2024
4(a) - Somnath S/o. Late Gajadhar Sahu And Smt. Kunti Bai Aged
About 52 Years R/o. Village - Selud, Tahsil - Patan, District - Durg
(C.G.)
4(b) - Kanti D/o. Smt. Kunti Bai Aged About 50 Years R/o. Durg, District
- Durg (C.G.)
4(c) - Pyarelal S/o. Late Gajadhar Sahu And Smt. Kunti Bai Aged
About 48 Years R/o. Village - Selud, Tahsil - Patan, District - Durg
(C.G.)
4(d) - Kiran D/o. Smt. Kunti Bai Aged About 46 Years R/o. Village -
Surdug, Tahsil - Patan, District - Durg (C.G.)
5 - Smt. Hemin Bai D/o Late Gajadhar Sahu R/o Village Borsi, Tahsil
And District Durg, Chhattisgarh,
6 - State Of Chhattisgarh Through The Collector Durg.
... Respondents
For Petitioners : Mr. BP Sharma with Mr. ML Saket and Mr. KN
Singh, Advocates.
For Respondents No. 1 : Mr. Abhishek Vaishnav, Advocate.
to 3
For Respondent/State : Mr. Devesh G. Kela, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey,
Hon'ble Shri Justice Sachin Singh Rajput, JJ
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal is to the legality and validity of the
judgment and decree dated 2nd February, 2018 passed in Civil Suit
No.62-A/2015 whereby the suit filed by the petitioners/plaintiffs for
specific performance of contract has been dismissed. For the sake of
convenience, parties shall hereinafter be referred to as per their
description before the trial Court.
02. Briefly stated, case of the plaintiffs is that there is a land situated
at Village-Pulgaon, PHN 18/25, Khasra No.193/1, area 1.676 hectare
in the joint ownership of defendants No. 1 to 5. Defendants No. 1 to 3
on behalf of their sisters defendants No. 4 & 5 entered into an
agreement with the plaintiffs for sale of the aforesaid land on 30.9.2014
@ Rs.38 lacs per acre and as an advance, Rs.2 lac cash and one
post-dated cheque of Rs.3 lacs of Syndicate Bank, Branch-Durg was
received. On the date of execution of the agreement, it was agreed
between the parties that Rs.20 lacs shall be paid by 10.11.2014 and
after receiving rest of the amount of sale consideration within six
months from the date of execution of agreement i.e. 30.9.2014,
registered sale deed shall be executed either in the name of the
plaintiffs or any other persons at the instance of the plaintiffs. Later on,
after taking back those post-dated cheques, defendants No.1 to 3 were
given cash of Rs.1.60 lacs and 1.40 lacs. As per agreement, Rs.20
lacs was to be paid by 10.11.2014 and hence being in need of money
when on 3.11.2014 defendant No.3 demanded Rs.5 lacs cash from the
plaintiffs out of the aforesaid amount of Rs.20 lacs, the plaintiffs gave
RTGS Cheque No.249516 of Rs.5 lacs of Syndicate Bank, Durg. The
plaintiffs deposited Rs.20 lacs in Syndicate Bank, Durg and informed
defendants No. 1 to 3 orally but they replied that since as of now they
are not in need of money, so they will inform them whenever needed.
The plaintiffs requested defendants No. 1 to 3 for taking Rs.15
lacs but they did not agree, on which a registered notice along with
three cheques, each of Rs.5 lacs, was sent on 27.11.2014 by the
plaintiffs to them and after receipt of the said notice on 28.11.2014,
defendants No. 1 to 3 on behalf of their sisters defendants No. 4 & 5 on
6.12.2014 sent a notice through an advocate which was replied by the
plaintiffs. The defendants are refusing to execute sale deed in favour of
the plaintiffs whereas they have always been ready and willing to
perform their part of contractual obligations. Hence this suit.
03. Respondents No. 1 to 3 in their written statement contended that
the suit property is the joint Hindu property of defendants No. 1 to 5
and as such, they have equal right and share over the suit property.
However, the agreement based on which the present suit is filed, is
incomplete, illegal and void because it does not bear signatures of all
the defendants and has not been executed by the defendants. There is
no written or oral consent of defendants No. 4 and 5. The plaintiffs
fraudulently obtained signature of defendants No. 1 to 3 on the first and
last page of the agreement by taking advantage of their illiteracy and
ignorance. Defendant No.3 never demanded Rs.5 lacs from the
plaintiffs and in fact, it is plaintiff No.1 who out of his own free will
deposited Rs.5 lacs in District Central Cooperative Bank, Durg without
intimation to defendant No.3 whereas defendants No. 1, 2, 4 & 5 had
not given any oral or written consent for the same to the plaintiffs. No
such agreement was ever executed by the defendants in favour of the
plaintiffs. In order to grab the suit land, the plaintiffs have committed
forgery and prepared this agreement. It was specifically averred that
the defendants agreed to sale the suit land @ Rs.1.50 crores per acre
but the plaintiffs by forgery made it @ Rs.38 lacs per acre. Since the
said agreement does not bear signature of defendants No. 4 & 5 and
their mother Sumotin Bai (dead), therefore, it is void ab initio.
Therefore, the suit is liable to be dismissed with cost and each of the
defendants be awarded Rs.5 lacs as compensation.
04. Defendants No. 4 & 5 in their written statement averred that the
agreement is incomplete, illegal and void for want of signatures of all
the defendants. It also does not bear signature of plaintiff Padam Jain.
Defendants No. 4 & 5 never gave consent to defendants No. 1 to 3 for
sale of the suit land or for execution of any agreement for this purpose.
The owner of the suit land namely Sumotin Bai died on 27.1.2014
whereas the said agreement was executed on 30.9.2014 which is
wholly illegal because in the said agreement name of deceased
Sumotin Bai is also mentioned. For all these reasons the suit is liable
to be dismissed with compensation of Rs.50,000/- to defendants No. 4
& 5.
05. Based on the pleadings of the respective parties, the learned trial
Court framed as many as seven issues and after appreciation of oral
and documentary evidence on record, dismissed the suit by the
impugned judgment and decree. Hence this appeal.
06. Learned counsel for the appellants would submit that the
impugned judgment is perverse and not sustainable in law. Learned
trial Court has failed to appreciate that the agreement of sale in respect
of suit property has been proved in accordance with law and after
reaching the conclusion of its due execution by defendant No.1 to 3
and acceptance of amount of earnest money for and on behalf of
themselves and also on behalf of defendants No. 4 & 5 by defendants
No. 1 to 3, declaring it void in its entirety show that the learned trial
Court has committed a grave error of law and jurisdiction and such
illegal exercise of jurisdiction cannot be allowed to continue by this
Court. He would next submit that not only the conduct of the plaintiffs is
relevant but also the conduct of the defendants in the cases where law
relating to equity is dealt with. Here in this case, the conduct of the
defendants is blameworthy and even after such blameworthy conduct,
non-suiting the plaintiffs amounts to travesty of justice. Learned trial
Court has failed to appreciate the evidence on record in its correct
perspective. Therefore, the impugned judgment and decree are liable
to be set aside and consequently, the suit of the plaintiffs be allowed in
toto. Alternatively, he would submit that in case of rejection of plea of
specific performance, the appellants are entitled to refund of the
amount paid to the defendants towards earnest money with interest.
Reliance has been placed on the decisions in the matters of
Chand Rani (Smt) (Dead) by LRs Vs. Kamal Rani (Smt) Dead by
LRs, (1993) 1 SCC 519; Alok Bose Vs. Parmatma Devi and others,
(2009) 2 SCC 582; Syscon Consultants Pvt. Ltd. Vs. Primella
Sanitary Products Pvt. Ltd. & another, (2016) 10 SCC 353; Maharaj
Singh and others Vs. Karan Singh (dead) through LRs and others,
(2024) 8 SCC 83; R. Kandasamy (since dead) and others Vs. TRK
Sarawathy and another; (2025) 3 SCC 513; and Vijay Prabhu Vs.
ST Lajapathie and others, 2025 INSC 52.
07. On the other hand, learned counsel for the respondents
supported the impugned judgment and decree and would submit that
learned trial Court minutely appreciated the oral and documentary
evidence and rightly dismissed the suit of the plaintiffs. Section 12 of
the Specific Relief Act does not apply where inability to perform specific
performance on part of the contract arises because of the plaintiff's
own conduct.
Reliance is placed on the decisions in the matters of Vinod
Kumar Arora Vs. Smt. Surjit Kaur, AIR 1987 SC 2179; Kartar Singh
Vs. Harjinder Singh and others, AIR 1990 SC 854; Basantilal Vs.
Rameshwar Prasad and another, 1993 0 ILR (MP) 584; B.
Leelavathi Vs. Honnamma and another, 2005 SAR (Civil) 622
Supreme Court; Bharat Ram Sahu Vs. Salik and others, 2006(2)
CGLJ 352; Viseshar Yadav Vs. Govind Swami, 2006(2) CGLJ 255;
AK Lakshmipathy (D) & others Vs. Rai Saheb Pannala H. Lahoti
Charitable Trust & others, 2010 SAR (Civil) 8 Supreme Court;
Nageshwar Prasad Singh Vs. Durga Devi and another, 2010(1)
CGLJ 355; Haldhar Patel and others Vs. PS Thakur and another,
2012(3) CGLJ 495; Vathsala Manickavasagam and others Vs. N.
Ganesan and another, (2013) 9 SCC 152; Rajasthan State Road
Transport Corporation Vs. Bajrang Lal, 2014(3) MPLJ 506;
Omprakash Vs. Laxminarayan and others, 2014(3) MPLJ 16;
Premmada Prabhakar and others Vs. Youngmen's Vysya
Association and others, 2014 SAR (Civil) 999 Supreme Court;
Syscon Consultants Pvt. Ltd. Vs. M/s Primella Sanitary Products
Pvt. Ltd. and others; 2017 SAR (Civil) 10 Supreme Court; Lakshmi
Sreenivasa Co-operative Building Society Ltd. Vs. Puvvada Rama
Rao (dead) by LRs. & others; 2018 SAR (Civil Supp.II) 272
Supreme Court; Shyam Narayan Prasad Vs. Krishna Prasad and
others, 2019(2) MPLJ 307; Ravi Setia Vs. Madan Lal and others,
2020 SAR (Civ) 23 Supreme Court; UN Krishnamurthy (since
deceased) thr. LRs Vs. AM Krishnamurthy, 2022 0 Supreme (SC)
565; Desh Raj and others Vs. Rohtash Singh, 2022 0 Supreme (SC)
1244; R. Kandasamy (since dead) and others Vs. TRK Sarawathy
and another; 2024 8 Supreme 684; Maharaj Singh and others Vs.
Karan Singh (dead) thr. LRs. & others; 2024 5 Supreme 481; and
Vijay Prabhu Vs. ST Lajapathie and others, 2025 INSC 52.
08. Heard learned counsel for the parties and perused the material
available on record.
09. Learned trial Court on the basis of pleadings of the respective
parties framed seven issues. The important issues being Issue Nos. 1,
2 & 3 are reproduced as under:
कमांक वाद-प्रश्न निष्कर्ष
1. क्या प्रतिवादी क्रमांक-1 से 3 द्वारा प्रतिवादी "इकरारनामा प्रदर्श पी-1
कमांक 4 व 5 की सहमति से वाद भूमि खसरा नं. प्रतिवादी कमांक-1 से 3 के
193/1. रकबा 1.676 हेक्टेयर ग्राम फु लगांव, मध्य निष्पादित किया गया.
प.ह.नं. 18/25, तहसील व जिला दुर्ग के विकय जिसमें प्रतिवादी क्रमांक 4 व
हेतु वादीगण के पक्ष में दिनांक 30-09-014 को 5 की सहमति नहीं थी
इकरारनामा निष्पादित किया गया ?
2. क्या वादीगण, इकरारनामा दिनांक 30-09-2014 "नहीं"
के पालन हेतु सदैव तैयार व तत्पर रहे हैं ?
3. क्या वादीगण के पक्ष में निष्पादित इकरारनामा "प्रतिवादी कमांक 4 व 5
दिनांक 30-09-2014 अवैध व शून्य है ? और सुमोतिन बाई के
परिप्रेक्ष्य में शून्य होना पाया
जाता है"
Both the parties filed various documents in support of their case.
Ex.P/1 is the agreement dated 30.9.2014 and as per this agreement, it
is clear that the same was executed between defendants - Hemraj,
Pukhraj, Khemraj, Kunti Bai, Hemin Bai, Sumotin Bai and plaintiffs -
Padam Jain & Roshan Jain. It is also clear from this agreement that
only three defendants namely Hemraj, Pukhraj and Khemraj signed
this document and it does not bear signature of other defendants.
10. PW-1 Padam Jain (plaintiff No.1) also admits in para 10 and 11
of his cross-examination that when agreement of Ex.P/1 was executed,
at that time defendants No. 4 and 5 namely Kunti Bai and Hemin Bai
were not present there. He admits that in this case he has not filed any
authorization letter/power of attorney executed by defendants No. 4 &
5 in favour of their brothers defendants No. 1, 2 & 3 for sale of land. He
states that it is true that no document with regard to payment of
advance amount to defendants No. 4 & 5 or receipt thereof has been
produced. He volunteers that money was received by their brothers.
He admits that in the revenue document B-1 (Ex.P/2) of the suit land,
names of defendants No. 4 & 5 and their mother Sumotin Bai are also
recorded. He admits that at the time of writing agreement of Ex.P/1,
mother of defendants No. 4 & 5 namely Sumotin Bai was alive as per
the document.
In para 25 he admits that as per agreement Ex.P/1, apart from
advance amount of Rs.5 lacs, a sum of Rs.20 lacs i.e. total Rs.25 lacs
was to be paid by 10.11.2014 and that by 10.11.2014 the defendants
were not paid Rs.25 lacs.
11. The agreement Ex.P/1 was executed on certain terms and
conditions. Condition No.2 of the agreement reads as under:
"2. यह कि पक्षकार क्रमांक-1 अपनी उपरोक्त सम्पत्ति क्रे ता को 38,00,000/-
(अक्षरी-अड़तीस लाख रुपये मात्र) प्रति एकड़ की दर से बिक्री करने का सौदा तय
कर लिया है, जिसके तहत् विक्रे ता ने पक्षकार क्र.-2 (क्रे ता) से बतौर व्याना राशि
रुपये 2,00,000/- (दो लाख रूपये) नगद एवं 3,00,000/- (तीन लाख रुपये) चेक
क्र. 249513 दिनांक 05.10.2014 सिंडीके ट बैंक का प्राप्त कर लिया है। क्रे ता
द्वारा दि. 10.11.2014 तक 20,00,000/-(अक्षरी-बीस लाख रुपये) विक्रे ता को
और प्रदान किया जावेगा। बाकी की रकम पक्षकार क्रमांक-2 द्वारा रजिस्ट्री के समय
प्रदान कर दी जावेगी। रजिस्ट्री की समया सीमा छः माह तक निर्धारित की गई है।"
Thus, it is clear from the admission of plaintiff Padam Jain (PW-
1) and the conditions of the agreement (Ex.P/1) that at the time of
execution of the agreement, all the owners of the suit property were not
present, only defendants No. 1 to 3 were present and they signed the
agreement. Defendants No. 4 & 5 were not present at the time of
execution of the agreement and therefore, they did not sign the
agreement. The plaintiff also admitted the suggestion of the defendants
that he did not file any power of attorney or authorization letter
executed by defendants No. 4 & 5 in favour of their brothers
defendants No. 1 to 3 for sale of the suit land. The plaintiffs have also
not filed any acknowledgment regarding payment of advance amount
to defendants No. 4 & 5. Learned trial Court minutely appreciated the
statements of all the witnesses and rightly found that the plaintiffs have
failed to prove the fact that agreement (Ex.P/1) was executed between
the plaintiffs and all the defendants on 30.9.2014 and held that no
consent was given by defendants No. 4 & 5 to defendants No. 1 to 3
for execution of this agreement. It is also clear from Condition No.2 of
the agreement that the plaintiffs had to pay Rs.20 lacs by 10.11.2014 to
the defendants but they did not file any money receipt or
acknowledgment to substantiate the fact regarding payment of this
amount to the defendants. PW-1 Padam Jain admitted that he did not
pay Rs.20 lacs by 10.11.2014 to the defendants. He volunteered that
they had gone to the house of the defendants on 7.11.2014 for giving
Rs.15 lacs but defendants refused to accept it saying that their sister is
not present now and they would take it later, and therefore, cheque
was sent subsequently. He admitted that the said fact is not mentioned
in the legal notice (Ex.P/3), plaint and statement on oath. He also
admitted that the cheque was issued after sending legal notice dated
27.11.2014 ( Ex.P/3).
12. The Hon'ble Supreme Court in the matter of Ravi Setia (supra)
held in paras 9 & 10 of its judgment as under:
"9. There can be no straight jacket formula with regard to
readiness and willingness. It will have to be construed in the
facts and circumstances of each case in the light of all attending
facts and circumstances. We are of the considered opinion, that
in the facts and circumstances of the present case, the failure of
the plaintiff to offer any explanation why the balance
consideration was not deposited within the time granted, the
filing of the application for extension of time after expiry of the
prescribed period coupled with the frivolousness of the grounds
taken in the application for extension that the money would lie in
the bank without earning interest, are all but evidence of
incapacity on part of the plaintiff to perform his obligations under
the agreement and reflective of lack of readiness and
willingness. He preferred to wait and abide by the gamble of a
favourable decision in the first appeal.
10. The grant of relief for specific performance under Section
16(1)(c) of the Act is a discretionary and equitable relief. Under
Section 16(1)(c), the plaintiff has to demonstrate readiness and
willingness throughout to perform his obligations under the
contract. The plea that the amount would lie in the bank without
interest is unfounded and contrary to normal banking practice. To
our mind, this is sufficient evidence of the incapacity or lack of
readiness and willingness on part of the plaintiff to perform his
obligations. Undoubtedly, the time for deposit could be extended
under Section 28 of the Act. But the mere extension of time for
deposit does not absolve the plaintiff of his obligation to
demonstrate readiness and willingness coupled with special
circumstances beyond his control to seek such extension. The
plaintiff did not aver in the application that he was ready and
willing to perform his obligations and was prevented from any
special circumstances from doing so. The pendency of an appeal
by the defendant did not preclude the plaintiff from depositing the
amount in proof of his readiness and willingness. Readiness has
been interpreted as capacity for discharge of obligations with
regard to payment. The High Court has rightly observed that
there was no stay by the Appellate Court of the decree under
appeal to justify non-deposit during the pendency of the appeal.
The grant of extension of time cannot ipso facto be construed as
otherwise demonstrating readiness and willingness on part of the
plaintiff. The plaintiff was required to plead sufficient, substantial
and cogent grounds to seek extension of time for deposit
because otherwise it becomes a question of his conduct along
with all other attendant surrounding circumstances in the facts of
the case. We therefore find no infirmity in the order of the High
Court concluding that the plaintiff in the facts and circumstances
was not ready and willing to perform his obligations."
13. In the matter of R. Kandasamy (supra) the Hon'ble Apex Court
in paras 21 and 29 of its judgment observed as under:
"21. Requisite pleadings and proof that are required of a plaintiff
to succeed in a suit for specific performance are succinctly
captured in this Court's decision of recent origin in U.N.
Krishnamurthy v. A.M. Krishnamurthy, (2023) 11 SCC 775. The
relevant passage reads: (SCC p. 783, para 24)
"24. To aver and prove readiness and willingness to
perform an obligation to pay money, in terms of a contract,
the plaintiff would have to make specific statements in the
plaint and adduce evidence to show availability of funds to
make payment in terms of the contract in time. In other
words, the plaintiff would have to plead that the plaintiff
had sufficient funds or was in a position to raise funds in
time to discharge his obligation under the contract. If the
plaintiff does not have sufficient funds with him to
discharge his obligations in terms of a contract, which
requires payment of money, the plaintiff would have to
specifically plead how the funds would be available to him.
To cite an example, the plaintiff may aver and prove, by
adducing evidence, an arrangement with a financier for
disbursement of adequate funds for timely compliance with
the terms and conditions of a contract involving payment
of money."
Absent a prayer for declaratory relief that termination
of the agreement is bad in law, whether a suit for
specific performance is maintainable?
29. A suit for specific performance of a contract for sale,
normally, is premised on a written agreement between the
contracting parties, signifying a meeting of minds of two persons
or more. Terms of the agreement, which are reasonably
ascertainable from the written document, assume extreme
relevance. After all, compliance with other requisites takes the
shape of a concluded contract and should there be no vitiating
factor, the parties are bound thereby."
14. In the matter of UN Krishnamurthy (supra), the Hon'ble
Supreme Court held in paras 43 & 44 of its judgment as under:
"43. In Saradamani Kandappan (supra) this Court reiterated that
(1) while exercising discretion in suits for Specific Performance,
the Courts should bear in mind that when the parties prescribed
a time for taking certain steps or for completion of the
transaction, that must have some significance and therefore
time/period prescribed cannot be ignored; (ii) the Courts will
apply greater scrutiny and strictness when considering whether
purchaser was ready and willing to perform his part of the
contract and (iii) every suit for Specific Performance need not be
decreed merely because it is filed within the period of limitation,
by ignoring time limits stipulated in the agreement. The courts
will also frown upon suits which are not filed immediately after
the breach/refusal. The fact that limitation is three years does not
mean that a purchaser can wait for one or two years to file a suit
and obtain Specific Performance. The three year period is
intended to assist the purchaser in special cases, as for example
where the major part of the consideration has been paid to the
vendor and possession has been delivered in part performance,
where equity shifts in favour of the purchaser.
44. In Atma Ram v. Charanjit Singh, (2020) 3.SCC 311 Justice V.
Ramasubramanian speaking for this Court made the following
pertinent observation:-
"9... No explanation was forthcoming from the petitioner
for the long delay of three years, in filing the suit (on
13.10.1999) after issuing a legal notice on 12.11.1996.
The conduct of a plaintiff is very crucial in a suit for specific
performance. A person who issues a legal notice on
12.11.1996 claiming. readiness and willingness, but who
institutes a suit only on 13.10.1999 and that too only with a
prayer for a mandatory injunction carrying a fixed court fee
relatable only to the said relief, will not be entitled to the
discretionary relief of specific performance."
15. Learned trial Court upon due appreciation of oral and
documentary evidence rightly found that the agreement (Ex.P/1) was
not signed by defendants No. 4 & 5 and they were not consenting party
to this agreement. Accordingly, the learned trial Court was justified in
deciding Issue No.3 that this agreement is null and void in relation to
defendants No. 4 & 5.
16. DW-1 Khemraj admits in para 12 of his deposition that at the
time of execution of the agreement, they were given Rs.2 lacs cash
and self-cheque of Rs.3 lacs as earnest money and subsequently three
lacs cash was given in two installments in lieu of that cheque. In para
13 he admits that later on a sum of Rs.5 lacs was deposited in his
account without his knowledge and they did not inform about it to the
plaintiffs. He admits that they utilized the said five lacs and did not
return it till date. It is also clear from penultimate paragraph of notice
Ex.P/14 that the defendants have obtained total Rs.10 lacs from the
plaintiffs and they are ready to return the said amount to the plaintiffs.
17. Learned trial Court also found that defendants No. 1 to 3
received Rs.10 lacs as advance money but defendants No. 4 & 5 did
not sign the agreement and also the plaintiffs failed to prove that
defendants No. 4 & 5 received any advance money from the plaintiffs
and as such, this agreement is not binding on them.
18. The Hon'ble Supreme Court in the matter of Satish Batra Vs.
Sudhir Rawal reported in (2013) 1 SCC 345 held in para 15 as under:
"15. Law is, therefore, clear that to justify the forfeiture of
advance money being part of 'earnest money' the terms of the
contract should be clear and explicit. Earnest money is paid or
given at the time when the contract is entered into and, as a
pledge for its due performance by the depositor to be forfeited in
case of non-performance, by the depositor. There can be
converse situation also that if the seller fails to perform the
contract the purchaser can also get the double the amount, if it is
so stipulated. It is also the law 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."
19. As per learned counsel for the appellants, once the learned trial
Court held the agreement (Ex.P/1) valid in respect of defendants No.1
to 3, it ought to have partly decreed the suit of specific performance of
contract in favour of the plaintiffs in view of provisions of Section 12 of
the Specific Relief Act. However, it is clear that the plaintiffs have failed
to prove their readiness and willingness to perform their contractual
obligations. They did not pay Rs.20 lacs as per conditions of the
agreement within the stipulated period. Learned trial Court also found
that all the defendants are joint owner of the suit property, so
agreement of Ex.P/1 is not executable against defendants No. 1 to 3
and thus, decided the issues against the plaintiffs and in favour of the
defendants. The findings recorded by learned trial Court are based on
proper appreciation of the overall material available on record and are
in consonance with the aforesaid guidelines of the Hon'ble Supreme
Court.
20. The Hon'ble Supreme Court in the matter of Vijay Prabhu
(supra) held in para 15 of its judgment as under:
"15. In the aforesaid context, we may refer to a decision of this
Court in Jaswinder Kaur (Now Deceased) through her Legal
Representatives and Others v. Gurmeet Singh and Others
reported in (2017) 12 SCC 810, wherein this Court observed in
paras 19, 20 and 21 respectively as under:
"19. In Abdul Haq v. Mohd. Yehia Khan reported in AIR
1924 Pat 81, the Court observed that the Court will not as
a general rule compel specific performance of a contract
unless it can execute the whole contract. It is not a case
where the entire contract is not capable of performance.
Section 12 encompasses provisions in respect of a claim
for specific performance of part of a contract. Sections 14
and 17 of the old Act have been amalgamated with
modifications and the explanation based on Section 13 of
the repealed Act together, the law is stated with clarity
under Section 12 of the Act.
20. Section 12(1) of the Act provides that specific
performance can be granted on part of a contract only in
the circumstances mentioned in the section.
Section 12(2) of the Act deals with breach the contract if a
party is unable to perform the whole of its part and such
part bears a small proportion to the whole in value and
admits compensation in money. The expression "unable
to perform" in Section 12(2) of the Act for instance would
mean that a part of the property destroyed after contract
or act of God or an act by which it would cease to exist. In
such a case party to a contract shall be deemed to be
unable to perform the whole or its part of the contract.
Such a person would come within the words "party in
default". The inability to perform may arise by deficiency
in quantity of subject-matter or deficiencies or some legal
prohibition or such other causes. None of such causes is
present in the instant case.
21. Section 12 of the Act does not apply where the
inability to perform specific performance on part of
contract arises because of the plaintiff's own conduct as
held in Abdul Rahim v. Maidhar Gazi reported in AIR 1928
Cal 584.
In Graham v. Krishna Chunder Dey reported in AIR 1925
PC 45, it has been laid down that the Explanation in the
section exhaust all the circumstances in which part-
performance can be granted. Section 12(2) of the Act
deals with the situation where a party is unable to perform
and such part is only a small proportion in value and
capable of compensation in form of money. It was not a
case covered in Section 12(2) of the Act at all. Under
Section 12(3) of the Act party in default is entitled to
specific performance on payment of whole consideration
or for the part left unperformed but here in the instant
case the plaintiff being in default could not be said to be
entitled to invoke Section 12(3) of the Act also."
21. In light of the aforesaid decision and the oral and documentary
evidence on record coupled with the conduct of the plaintiffs, we are
not inclined to grant decree for specific performance of part of a
contract. The judgments relied upon by learned counsel for the
appellants being distinguishable on facts are of no help to appellants.
However, in view of the admitted position as is reflected from the
evidence of DW-1 Khemraj and the legal notice (Ex.P/14) that
defendants No. 1 to 3 received total Rs.10 lacs as advance money
from the plaintiffs, we are of the opinion that the plaintiffs are entitled
for refund of this amount with interest.
22. In the result, the appeal is allowed in part. Defendants No. 1 to 3
are directed to return Rs.10 lacs to the plaintiffs with interest @ 6% p.a.
from the date of passing of this judgment till its actual payment, within
a period of six months from today. The impugned judgment and decree
stand modified to the above extent.
Let a decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
MOHD by
Judge Judge
AKHTAR Date:
2025.07.17
KHAN 16:39:25
+0530
Khan
