Chattisgarh High Court
Pramod Parakh (Jain) vs Smt. Mala Jona on 13 June, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:23859-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 07-03-2025
Judgment delivered on : 13-06-2025
FA No. 389 of 2019
1 - Pramod Parakh (Jain) S/o - Late Ranulal Aged About 36 Years (At
Present Aged 56 Years), R/o - Lalram Line, Balaji Ward, Jagdalpur
Chhattisgarh,
2 - Suresh Parakh (Jain) S/o - Late Ranulal Aged About 49 Years R/o -
Lalaram Line, Balaji Ward, Jagdalpur Chhattisgarh
... Appellants/plaintiffs
versus
1 - Smt. Mala Jona Wd/o- Late Jaiprakash Jona Aged About 62 Years
2 - Smt. Priyadarshani Jonh, W/o - Vishal Jonh, Aged About 34 Years
D/o - Late Jaiprakash Jona,
3 - Abhishek Jona S/o - Late Jaiprakash Jona Aged About 31 Years
4 - Smt. Shewta Das W/o - Vikky Das, Aged About 28 Years D/o - Late
Jaiprakash Jona,
All are R/o Shanti Nagar Ward, Jagdalpur (Madan Mohan Malviya,
Ward No.45, Jagdalpur (CG)
5 - T. Raja Vikram S/o - T. Kondal Rao Aged About 35 Years R/o -In
2
Front Of Shri Sai Mandir, Chitrakot Road, Aghanpur, Jagdalpur
Chhattisgarh,
6 - Rahul Kumar Jain S/o - Rajkumar Jain Aged About 26 Years R/o -
Palace Road, In Front Of Sanjay Market, Jagdalpur, District Bastar
Chhattisgarh
7 - State Of Chhattisgarh Through Collector, Bastar Jagdalpur
... Respondents
For Appellants : Mr. Rajeev Shrivastava, Sr. Adv. With Mr. Malay
Shrivastava and Ms. Anu Mishra, Advocates.
For Respondents : Mr. Prafull N. Bharat, Sr. Adv. With Mr. Keshav
No. 1 to 4 Dewangan, Advocate.
For Respondents : Mr. Varun Sharma, Advocate.
No. 5 & 6
For Respondent : Mr. Devesh G. Kela, Panel Lawyer.
No.7
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 14.5.2019 passed by First Additional District Judge,
Bastar, Jagdalpur in Civil Suit No.10-A/2013 whereby the suit has been
partly allowed with cost and respondents/defendants No. 1 to 4 are
directed to pay an amount of Rs.10.32 lacs to the plaintiffs with current
bank interest from 5.8.2012 till payment. (For the sake of convenience,
parties shall hereinafter be referred to as per their description before
the trial Court.)
02. The original plaintiff Smt. Shanti Devi Parakh filed a suit for
specific performance of contract for the land situated at Village-
Frejarpur, P.H. No.60(A), Jagdalpur bearing Khasra No.14/2, area 1.61
acres (in short "the suit land"). Case of the plaintiffs is that the suit land
is part of Khasra No.14 in which the defendants are having joint share.
Defendant No.1 entered into an agreement on 19.4.2007 to sell his
share of land. As per the said agreement, sale deed was to be
executed till 19.4.2009 and sale consideration of the suit land was
Rs.12 lacs per acre. After partition being done, the suit land fell in the
share of defendant No.1, so again an agreement was executed
between defendant No.1 and the original plaintiff Shanti Devi on
7.9.2010 for a total sale consideration of Rs.19.32 lacs and sale deed
was to be executed till 31.3.2013. Defendant No.1 obtained Rs.10.10
lacs till 7.9.2010 and received Rs.18.32 lacs till 5.8.2012 from the
plaintiffs. Even thereafter defendant No.1 was not executing sale deed
in favour of the plaintiffs and without their knowledge, on 24.12.2012
defendant No.1 executed a sale deed in favour of defendants No. 2 & 3
of the suit land. Therefore, the plaintiffs filed the suit for specific
performance of contract against the defendants.
03. Defendant No.1 in his written statement denied the plaint
averments and stated that the plaintiffs were indulged in sale and
purchase of land. In fact, defendant No.1 had taken a loan from the
plaintiffs and as he was unable to repay the loan amount, an
agreement was executed with the plaintiffs but the sale consideration
was Rs.25 lacs per acre and not Rs.19.32 lacs for the entire suit land.
Defendant No.2 & 3 in their written statement also denied the plaint
averments and stated that they are bonafide purchase of the suit land.
04. Based on the pleadings of the respective parties, the learned trial
Court framed four issued and after appreciation of oral and
documentary evidence partly decreed the suit with cost and directed
respondents/defendants No. 1 to 4 to pay an amount of Rs.10.32 lacs
to the plaintiffs with current bank interest from 5.8.2012 till payment.
Hence this appeal by the plaintiffs.
05. Learned counsel for the appellants/plaintiffs would submit that
the impugned judgment and decree are partly arbitrary, illegal and
contrary to the law applicable to the facts and circumstances of the
case. Once the trial Court came to the conclusion that the agreement
between the plaintiffs and defendant No.1 is proved and there is no
evidence to the effect that defendants No. 2 & 3 are bonafide
purchaser of the suit land, the trial Court ought to have granted decree
for execution of sale deed in favour of the plaintiffs. The trial Court in
paras 15 & 16 of the impugned judgment has recorded a finding that
no precaution was taken by defendants No. 2 & 3 before purchasing
the suit land, hence they do not come within the purview of bonafide
purchaser and as such, the finding of the trial Court that they are
bonafide purchaser, is perverse and based on conjecture and
surmises. The trial Court has not properly appreciated the evidence on
record in its right perspective while considering the issue of defendants
No. 2 & 3 being bonafide purchaser. Further, the learned trial Court
was not justified in holding that the plaintiffs are entitled for only
Rs.10.32 lacs. The said finding is also perverse and without any
evidence and is based on conjecture and surmises. Therefore, the
impugned judgment and decree deserve to be modified and a decree
for execution of sale deed of the suit land in favour of the plaintiffs may
be passed.
Reliance has been placed on the decision of the Hon'ble
Supreme Court in the matter of Manjit Singh and another Vs.
Darshana Devi and others, 2024 SCC OnLine SC 3431.
06. Per contra, learned counsel for respondents No. 1 to 4 and for
respondents No. 5 & 6 opposing the contention of the plaintiffs would
submit that the learned trial Court minutely appreciated the oral and
documentary evidence and partly decreed the suit for specific
performance of contract. It is clear from the statements of the
witnesses that the plaintiffs are not entitled for a decree of specific
performance and even not entitled for refund of any amount but the
learned trial Court partly allowed the suit of the plaintiffs and directed
the defendants to return advance amount of Rs.10.32 lacs with interest
to the plaintiffs. This finding is also liable to be set aside looking to the
conduct of the plaintiffs.
Learned counsel for respondents No. 1 to 4 placed reliance on
the decisions in the matters of A. Kanthamani Vs. Nasreen Ahmed,
(2017) 4 SCC 654; Kamal Kumar Vs. Premlata Joshi and others,
(2019) 3 SCC 704; Seethakathi Trust Madras Vs. Krishnaveni,
(2022) 3 SCC 150; Saurav Jain and another Vs. ABP Design and
another, (2022) 18 SCC 633; R. Hemalatha Vs. Kashthuri, (2023) 10
SCC 725; and Srinivas Raghavendrarao Desai (dead) by LRs Vs.
Kumar Vamanrao alias Alok and others, 2024 SCC OnLine SC 226.
Learned counsel for respondents No. 5 & 6 also placed reliance
on the judgment in the matter of Seethakathi Trust Madras Vs.
Krishnaveni, (2022) 3 SCC 150 and the judgment in the case of UN
Krishnamurthy Vs. AM Krishnamurthy, (2023) 11 SCC 775.
07. Heard learned counsel for the parties and perused the material
placed on record including the record of the trial Court.
08. It is clear from the record of learned trial Court that the plaintiffs
filed a suit for specific performance of contract against the defendants
on the basis of agreement dated 7.9.2010. On the basis of pleadings of
the parties, learned trial Court framed following issues :
वाद प्रश्न निष्कर्ष
01. क्या वादी, प्रति.क.01 से पंजीकृ त विक्रय अनुबंध दिनांक- "हां"
07.09.2010 के अंतर्गत वाद सम्पदा के संबंध में संविदा का
विनिर्दिष्ट पालन कराने का अधिकारी है ?
02. क्या प्रश्नगत विक्रय अनुबंध पत्र का निष्पादन वादी एवं "नहीं
प्रतिवादी क.01 के मध्य सम्पदा के विक्रय का वास्तविक करार
न होकर कर्ज राशि की सुरक्षा के रूप में अनुबंध पत्र निष्पादित
किया गया था तथा वादी ने प्रतिवादी क.01 के साथ छल
कपटपूर्वक पंजीकृ त विकय पत्र दिनांक 07.09.2010
निष्पादित कराया था ?
03. क्या प्रतिवादी कमांक 02 एवं 03 वाद सम्पदा के सद्भाविक "हां"
के ता है ?
04. सहायता एवं व्यय ? "निर्णय की कं डिका
17 के अनुसार"
09. The plaintiffs filed the agreement dated 7.9.2010 as Ex.P/1. As
per the plaintiffs, original plaintiff Shanti Devi Parakh and original
defendant No.1 Jai Prakash Jona executed this agreement. Learned
trial Court after appreciation of oral and documentary evidence gave
finding on Issue No.1 in affirmative and held that the plaintiff is entitled
for specific performance of contract dated 7.9.2010 in respect of the
suit land and also decided Issue No.2 against the defendant No.1.
However, while deciding Issue No.3 learned trial Court held that
defendants No. 2 & 3 are bonafide purchaser of the suit land.
10. It is clear from the statement of PW-1 Pramod Parakh that Shanti
Devi Parakh executed General Power of Attorney in his favour and he
filed the General Power of Attorney as Ex.P/15. In para 25 he states
that he is deposing on behalf of Shanti Devi in the capacity of attorney.
11. Learned counsel for the respondents objected to the claim of the
plaintiffs on the ground that the original executrix of the agreement
(Ex.P/1) did not enter the witness box and Ex.P/15 is General Power of
Attorney, so there is no evidence adduced by the plaintiffs to show
continuous readiness and willingness for performance of their part of
contractual obligation.
12. The Hon'ble Supreme Court in the matter of UN Krishnamurthy
(supra) held in paras 23, 24, 47 & 48 of its judgment as under:
"23. Section 16 (c) of the Specific Relief Act, 1963 bars the relief
of specific performance of a contract in favour of a person, who
fails to aver and prove his readiness and willingness to perform
his part of contract. In view of Explanation (i) to clause (c) of
Section 16, it may not be essential for the plaintiff to actually
tender money to the defendant or to deposit money in court,
except when so directed by the Court, to prove readiness and
willingness to perform the essential terms of a contract, which
involves payment of money. However, Explanation (ii) says the
plaintiff must aver performance or readiness and willingness to
perform the contract according to its true construction.
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.
47. It is, therefore, patently clear that the respondent-plaintiff has
failed to prove his readiness to perform his part of contract from
the date of execution of the agreement till date of decree, which
is a condition precedent for grant of relief of specific
performance. This Court finds that the respondent-plaintiff was
not entitled to the relief of specific performance.
48. The respondent-plaintiff may have been willing to perform his
part of contract. It however appears that he was not ready with
funds. He was possibly trying to buy time to discharge his part of
contract."
13. Learned counsel for respondents No. 5 & 6 submitted that before
filing of this suit, they had purchased the suit property and they are
bonafide purchaser. It is clear from the record that sale deed was
executed by the original owner of the suit land in favour of defendants
No. 2 & 3 i.e. respondents No. 5 & 6 on 24.12.2012 as per Ex.P/2 and
this suit was instituted on 19.6.2013. Therefore, the plaintiffs are not
entitled for any relief of specific performance.
14. The Hon'ble Supreme Court in the matter of Seethakathi Trust
Madras (supra) held in para 15 of its judgment as under:
"15. Since Niraja Devi was a bona fide purchaser long prior to
the institution of the suit for specific performance by the
respondent, specific performance could not be enforced against
her or her transferees as they would fall within the exception of
transferee for value who had paid money in good faith and
without notice of the original contract."
15. In the present case also learned trial Court decided Issue Nos. 1
& 2 in favour of the plaintiffs and the respondents did not file any cross-
objection against these findings. So we're not inclined to re-appreciate
the evidence in respect of these findings and confine our finding only in
respect of Issue No.3 i.e. whether defendants No. 2 & 3 are bonafide
purchase of the suit property?
16. Learned trial Court in para 16 of the impugned judgment held as
under:
"16. उक्त संबंध में प्रतिवादी साक्षी कमांक 02 राहुल कु मार जैन का शपथ पत्र
अंतर्गत आदेश 18 नियम 04 सी.पी.सी. एवं उक्त साक्षी का न्यायालयीन प्रति
परीक्षण विशेष रूप से अवलोकनीय है। प्रति परीक्षण के दौरान यद्यपि प्रतिवादी
साक्षी कमांक 02 राहुल कु मार जैन के द्वारा वादी पक्ष के इन सुझावों को स्वीकार
किया गया है कि, वाद सम्पदा कय करने के पूर्व वाद भूमि के संबंध में जो छानबीन
की थी उक्त संबंध में कोई रिकार्ड प्रकरण में प्रस्तुत नहीं किया है। तथा इस तथ्य को
भौ स्वीकार किया गया है कि विक्रय पत्र दिनाक 24.12.2012 के पंजीयन के पूर्व
पंजीयन कार्यालय में जाकर शांति देवी एवं जयप्रकाश जोना के बीच सम्पन्न हुये
विकय करार बाबत कोई भी छानबीन नहीं की थी। किन्तु के वल इन्हीं स्वीकारोक्ति
के आधार पर प्रतिवादी कमांक 02 एवं 03 को वाद भूमि के सदभाविक के ता होने
से इन्कार नहीं किया जा सकता क्योंकि प्रतिवादी साक्षी क्रमांक 02 राहुल कु मार
जैन ने अपने शपथ पत्र अंतर्गत आदेश 18 नियम 04 सी.पी.सी. एवं जवाबदावा में
कहीं भी यह इंकार नहीं किया है कि वाद सम्पदा कय करने के उक्त संबंध में कोई
भी छानबीन राजस्व कार्यालय में जाकर नहीं किया था।"
DW-2 Rahul Kumar Jain admitted in para 10 of his cross-
examination that prior to registration of sale deed dated 24.12.2012 he
did not enquire from the registration office about registration of any sale
deed executed between Shanti Devi and Jaiprakash Jona. He states
that after receipt of notice from the plaintiff, he gave reply Ex.D/1 and
then he came to know about the agreement executed in respect of the
suit land between Jaiprakash Jona and Shanti Devi. He admits that
even after coming to know about this agreement, he made no enquiry
in this regard from the registration office. He admits that prior to
purchase of the suit property, he did not make any publication that if
any other person or institute has any share over it, he/it can raise
objection with documents. Thus, from his statement it is clear that it is
only after receipt of notice from the plaintiff that he came to know about
the agreement earlier executed between Jainprakash Jona and Shanti
Devi Parakh. The plaintiffs also filed notice dated 16.4.2013 (Ex.P/10)
but it is clear from the date of this notice that it was also issued by the
plaintiff after execution of sale deed dated 24.12.2012 in favour of
defendants No. 2 & 3. The plaintiffs in lengthy cross-examination of the
defendants witnesses could not prove that prior to execution of sale
deed dated 24.12.2012 defendants No. 2 & 3 had any knowledge
about execution of any agreement between Shanti Devi and
Jaiprakash Jona in respect of the suit land. The plaintiffs also did not
file any general publication or other document which could show that
defendants No. 2 & 3 had prior knowledge of the agreement dated
19.4.2007. Thus it is clear that such bonafide purchase by defendants
No. 2 & 3 took place prior to institution of suit for specific performance
and they would fall within exception of transferee for value who had
paid money in good faith and without notice of original contract as has
been held by the Hon'ble Supreme Court in Seethakathi Trust Madras
(supra). Learned trial Court rightly held defendants No. 2 & 3 bonafide
purchaser of the suit property and the plaintiffs are not entitled for any
relief of specific performance. We see no good reason to interfere with
this finding.
17. It also transpires from the record that the plaintiffs claimed
alternative relief of refund of advance amount of Rs.18.32 lacs with
interest. Learned trial Court found that the plaintiffs have failed to prove
the fact that they paid advance amount of Rs.18.32 lacs but it is proved
that they paid only Rs.10.32 lacs and hence partly decreed the suit
with a direction to defendants No. 1A to 1D to refund a sum of
Rs.10.32 lacs with current bank interest from 5.8.2012 till payment to
the plaintiffs.
18. From the statement of the plaintiff Pramod Parakh (PW-1) it is
clear that he filed Exs.P/4 and P/5 which shows that the plaintiff gave
Rs.4 lacs to defendant No.1 Jaiprakash Jona and for other transactions
the plaintiffs filed Ex.P/9 which is receipt of Jaiprakash Jona titled as
"Karar Patra". In this Karar Patra, defendant No.1 Jaiprakash Jona
admitted that he has received a total sum of Rs.18.32 lacs from the
plaintiff through cheque and in cash. But the learned trial Court rightly
held that except this document, the plaintiffs did not file any other
document to substantiate the fact regarding payment of Rs.18.32 lacs
to him and accordingly awarded only Rs.10.32 lacs to the plaintiffs with
interest. In the given facts and circumstances of the case, we are
inclined to only modify interest @ 9% per annum on the above amount
from 5.8.2012 till the date of payment.
19. In the result, the appeal is allowed in part. Respondents No. 1 to
4/defendants No. 1A to 1D are directed to pay a total sum of Rs.10.32
lacs to the plaintiffs with interest @ 9% per annum from 5.8.2012 till the
date of payment. This amount be paid to the plaintiffs within a period
of two months from the date of passing of this judgment and the
amount, if any, already paid by them shall be adjusted accordingly. The
impugned judgment and decree stand modified to the above extent
only. A decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
Judge Judge
MOHD by MOHD
AKHTAR Date:
2025.06.13
KHAN 16:35:43
+0530
Khan
