Jharkhand High Court
Smt. Shova Devi vs Sri Hasmukh Thacker on 24 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 4 of 2016
1. Smt. Shova Devi, wife of late Dasrath Prasad Swarnkar.
2. Sri Krishna Prasad Verma
3. Sri Suresh Prasad Verma
4. Sri Rajesh Kumar Verma
5. Sri Shyam Kumar Verma
6. Sri Rakesh Kumar Verma
7. Sri Sanjay Kumar Verma
Appellant Nos. 2 to 7 are sons of late Dashrath Prasad Swarnkar,
resident of Katras Road, Matkuria, P.O. & P.S. Bankmore, Dist.
Dhanbad.
... ... Defendants/ Respondents/ Appellants
Versus
Sri Hasmukh Thacker, son of late Ratilal Thacker, resident of Auto
Centre, Katras Road, Matkuria, P.O. & P.S. Bankmore, Dist. Dhanbad.
... ... Plaintiff/ Appellant/Respondent
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mrs. Jasvindar Mazumdar, Advocate
Mrs. Neeharika Mazumdar, Advocate
For the Respondent : Mr. Rahul Kumar Gupta, Advocate
Mr. Lukesh Kumar, Advocate
Mr. Rakesh Kr. Singh, Advocate
---
22/24.03.2025 Heard the learned counsel appearing on behalf of the parties.
2. This Second Appeal has been filed against the Judgment dated
09.09.2015 (decree signed on 14.09.2015), by learned District
Additional Sessions Judge-VIII, Dhanbad in Title Appeal No. 136 of
2012, whereby the Appeal has been allowed. The 1st Appellate Court
has set aside the judgment dated 25.09.2012 (decree signed on
10.10.2012) passed by learned Civil Judge (Senior Division)-VI,
Dhanbad in Title Suit No. 52 of 2005, whereby the learned Trial Court
had dismissed the suit for specific performance of contract instituted by
the plaintiff.
3. The following substantial questions of law have been framed for
consideration :
a) Whether the contradictory interpretation of exhibit
1 by both the lower court below gives rise to a
substantial question of law as one of the co-sharer
is not a party to thus any such alienation by virtue
of said agreement in question is not sustainable in
the eyes of law?
b) Whether the failure of the plaintiff with cogent
evidence to demonstrate his willingness to perform
his part of the agreement with the defendants debars
the plaintiff to have specific performance of
contract as per Section 16(c) of the Specific Relief
Act?"
Arguments of the appellants (defendants)
4. The learned counsel for the appellants has submitted that the core
of the dispute is in connection with the agreement of sale dated
05.07.2003 (Exhibit-1) which was said to be entered on the one hand
between the 7 legal heirs and successors of late Dasrath Prasad
Swarnkar (in whose name the property was standing) and Sri Hasmukh
Thacker on the other hand. She submits that admittedly the daughters
of late Dasrath Prasad Swarnkar were not party to the said agreement
and one son namely, Rajesh Kumar Verma, was not a signatory to the
said agreement, as he did not sign the agreement and the agreement did
not reveal that one or the other co-sharers of the property was authorized
to act on behalf of said Rajesh Kumar Verma. She submits that though
Rajesh Kumar Verma was not a signatory to the agreement, he was
made party as defendant No. 4 in the suit and the written statement was
filed on behalf of all the defendants stating that defendant No. 4 was not
a signatory to the agreement.
5. The learned counsel has further submitted that as per the
agreement, the total consideration amount with respect to the property
was Rs.78,000/- out of which Rs.53,500/- was said to have been paid
and remaining amount was Rs.24,500/- and the agreement reveals that
the vendors were to execute and register a proper sale deed in favour of
the plaintiff within a period of 2 months from the date of the agreement
at cost and expenses of the purchaser (plaintiff) on receipt of balance
consideration amount of Rs.24,500/- only before Registering Authority
at the time of registration of the sale deed. It was also stipulated that if
the vendors fails to execute and register a proper sale deed within the
stipulated time, the purchaser (plaintiff) shall be at liberty to make the
vendors bound to executed and register the sale deed in favour of the
purchaser (plaintiff) with the help of Court.
6. The learned counsel has submitted that the agreement was
executed on 05.07.2003 and two months expired on 05.09.2003 but the
case was instituted seeking Specific Performance of Contract on
06.04.2005 and in the plaint there is no specific averment as to what
steps the plaintiff had taken to show his readiness and willingness to
execute the sale deed within 2 months from the agreement and even till
the filing of the suit . The learned counsel has relied upon the judgment
passed by the Hon'ble Supreme Court reported in Janardan Das & Ors.
Vs. Durga Prasad Agarwalla & Ors. [2024 SCC Online SC 2937] and
has referred to paragraph- 7 of the said judgment and has submitted that
the said judgment has considered the concept of continuous readiness
and willingness as per mandate of Section 16(c) of the Specific Relief
Act, 1963 and also had similar fact as is involved in the present case
wherein one of the defendants of the case lacked the authority to act on
behalf of other defendants without a valid and subsisting General Power
of Attorney, meaning thereby all the defendants of the case were not
party to the Agreement of Sale. She has referred to paragraphs-8, 9 and
13 of the said judgment.
7. The learned counsel has submitted that in the present case the
learned Trial Court had interpreted the agreement by holding that it was
not binding on the defendant No. 4 as he was not a signatory to the said
agreement and consequently, the agreement was not at all enforceable
and there was no valid agreement between the parties to sale vide
agreement dated 05.07.2003. She submits that this finding has been
reversed by the learned Appellate Court by observing that no separate
written statement was filed by the defendant No. 4 and no evidence was
adduced by the defendant No. 4 and the only person who adduced in
evidence was defendant No. 5, who deposed that the defendant No. 4
did not sign the agreement as he had gone out of station and he had
agreed that he would sign the agreement once he comes back and that
the agreement was executed considering the interest of the family. The
learned counsel has submitted that though the defendant No.4 had not
filed a separate written statement and had not deposed before the Court
but a specific stand has been taken in the written statement filed by all
the defendants that defendant No. 4 was not a signatory to the
agreement and it was not the case of the purchaser (plaintiff) from the
agreement or from the plaint that the defendant no.4 had authorised one
or the other person to act on his behalf or had undertaken to sign later
and on this count the agreement was binding on him. The learned
counsel has submitted that the Appellate Court was not justified in
reversing the decree and the 1st substantial question of law is fit to be
answered in favour of the appellants and against the respondents.
8. With respect to the 2nd substantial question of law, she has
submitted that the readiness and willingness in terms of Section 16(c)
of the Specific Relief Act, is also to be seen in the light of the aforesaid
judgment of Janardan Das (supra) and has submitted that there is no
material on record that the purchaser (plaintiff) had acted in terms of
the agreement and only a vague statement was made in the plaint that
the plaintiff has been approaching the defendants for the purpose of
execution of the sale deed although as per the agreement the needful
was to be done within a period of 2 months from the date of agreement.
The learned counsel has submitted that it is a requirement in law that
party has to act in terms of the agreement to show their readiness and
willingness. She has also submitted that though the balance amount is
not required to be deposited before the Court but availability of the fund
is required to be demonstrated to show the readiness and willingness.
She submits that the learned Appellate Court has recorded a finding in
connection with readiness and willingness in para-14 of the impugned
judgment by merely observing that the total value of the property as per
the agreement was Rs.78,000/- out of which Rs.53500/- i.e. to the extent
of 70% was already paid and therefore, it cannot be said that the
purchaser (plaintiff) was not ready to purchase the property or purchaser
(plaintiff) was not ready and willing to act as per the agreement.
Learned counsel submits that finding of the learned 1st Appellate Court
on the point of readiness and willingness is contrary to the judgment
passed by the Hon'ble Supreme Court in case of Janardan Das (supra)
and therefore, the 2nd substantial question of law is also fit to be
answered in favour of the appellants and against the respondent-
purchaser (plaintiff).
Arguments of the respondent- purchaser (plaintiff)
9. Learned counsel for the respondent- purchaser (plaintiff), on the
other hand, has opposed the prayer and has submitted that non-signing
of the agreement of sale by Rajesh Kumar Verma (defendant No. 4) has
been fully explained by the defendant No. 5 in his evidence and
accordingly, the learned 1st Appellate Court has rightly taken note of
the evidence of defendant No. 5 in the light of the fact that the defendant
No. 4 did not file a separate written statement and defendant No. 4 had
not even deposed before the learned Court. The learned counsel has
submitted that the agreement was binding on defendant No. 4 in the
light of the discussions made by the learned 1 st Appellate Court and
such finding of fact being based on material on record, cannot be said
to be perverse in the eyes of law.
10. Without prejudice to the aforesaid arguments, the learned
counsel has relied upon the judgment passed by Hon'ble Supreme Court
in the case of Surinder Singh Vs. Kapoor Singh (dead) through LRS
& Ors. [(2005) 5 SCC 142] and has submitted by referring to
paragraphs-6,7,8 and 16 of the said judgment to submit that merely
because one of the co-owner of the property namely defendant No. 4
having not signed the agreement, the same is not fatal to the suit seeking
specific performance of contract and the remaining defendants were to
be directed to execute the sale deed and the property being a joint family
property, at the stage of partition, the property could be adequately
distributed amongst the co-sharers. The entire joint property is 4 kathas
and it is only a small portion of the property consisting 120 sq.ft. which
was to be sold in terms of the agreement. The learned counsel has
referred to the 1st Appellate Court's judgment and has submitted that
though the Appellate Court has not excluded defendant No. 4 from
executing the agreement but the Appellate Court has considered the
evidence on record and has found that the agreement was also binding
on defendant No. 4.
11. With respect to readiness and willingness to perform the part of
the agreement by the purchaser (plaintiff), the learned counsel has
referred to the plaint and has submitted that specific averment was made
in paragraphs-3,4,5 and 6 with regard to readiness and willingness. The
said paragraphs are quoted as under:
"(3) That, the plaintiff orally expressed his willingness
to make the payment of balance consideration money to
the defendants in order to accomplish the execution of the
sale deed.
(4) That, the defendants started evading the execution/
registration of the sale deed before the Sub-Registry Office
in terms of the said Sale Agreement dated 05.07.2003.
(5) That, the plaintiff was/is always ready and willing
to pay the balance consideration money to the Vendors
and execute the Sale Deed.
(6) That, the cause of action for the present suit arose
on 05.07.2003 and the various dates when the plaintiff
expresses his willingness to make the balance
consideration money and still continue."
12. The learned counsel has submitted that no legal notice as such
was given by the plaintiff with regard to specific performance of
contract but the plaintiff had deposed before the Court with respect to
readiness and willingness to perform his part of the contract.
13. He has further submitted that the case of plaintiff as well as
defendants is to be taken together and it was the specific case of the
defendants that there was no agreement to sell and the amount
mentioned to have been paid in the agreement was returned to the
plaintiff. He has submitted that it was never the case of the defendants
that the defendants were ready and willing to perform their part of the
contract. The learned counsel has submitted that giving the plaint and
the written statement and facts and circumstances of the case, the
learned Appellate Court has rightly come to a conclusion that the
plaintiff was ready and willing to perform his part of the contract. He
has submitted that once a substantial amount to the extent of 70% with
respect to the suit property was already paid, the learned Appellate
Court has rightly drawn a conclusion that there could be no reason for
no willingness and readiness to pay the remaining balance amount and
the said finding which has been recorded by the learned 1 st Appellate
Court cannot be said to be perverse. He submits that findings of
readiness and willingness has been recorded on the basis of material on
record and such findings do not call for any interference.
14. However, it has been observed by this court during the course of
arguments and placement of the plaint and evidence on record, the
averments and also the evidence regarding readiness and willingness
does not reflect any date on which the purchaser (plaintiff) had taken
steps to show his readiness and willingness to execute the sale deed or
the dates on which the purchaser (plaintiff) had approached the
defendants for the purposes of execution of the sale deed. Admittedly,
the date of agreement is 05.07.2003, the sale deed was to be executed
within 2 months from the date of the agreement and the suit was filed
on 06.04.2005.
Findings of this Court.
15. It was the case of the plaintiff that he entered into an agreement
for sale on 05.07.2003 with the defendants with respect to immovable
property and paid advance amount of Rs.53,500/- out of total
consideration of Rs.78,000/- and it was stipulated in the agreement that
the defendants would execute and register a sale deed in their favour
within two months on receipt of balance consideration amount of
Rs.24,500/- to be paid at the time of execution of the registered sale
deed. It was the specific case that plaintiff always ready and willing to
pay the balance consideration amount for execution of the sale deed and
it was pleaded that cause of action arose on 05.07.2003 (the date of the
agreement) and on various dates when the plaintiff expressed his
willingness to pay the balance consideration and the cause of action was
still continuing.
16. The defendants filed their written statement challenging the
maintainability of the suit and also denying the cause of action and also
asserted that the agreement did not bear the signature of defendant No.4,
who was also the co-owner of the property being the son of late Dasrath
Prasad Swarnkar. Dasrath Prasad Swarnkar died on 10.03.2002, leaving
behind the defendants and two married daughters who were neither
party to the agreement nor party to the suit.
With respect to the agreement and the transaction of money a
totally different story was projected. It was asserted by the defendants
that the plaintiff was a tenant in the shop premises on monthly rent and
the brother of the plaintiff told the defendants that late Dasrath Prasad
Swarnkar had taken auto parts on credit to the tune of Rs.53,500/- and
demanded return of the said amount which the defendants agreed to pay
and on 01.07.2003, the defendant No. 1 requested the plaintiff to allow
two months' time to which plaintiff did not agree and instead asked the
defendants to execute an agreement for sale of the shop with a condition
that the agreement for sale would be returned in case the defendants
repay the aforesaid dues of Rs.53,500/- within two months. It was also
asserted that the amount of Rs.53,500/- was paid and the defendants
asked the plaintiff to return the agreement but the plaintiff did not return
the same stating that it was misplaced. It was also asserted that the
plaintiff failed and neglected to pay the rent of the shop as a result of
which the defendant No. 5 requested Janak Thakker, the brother of the
plaintiff, to vacate the shop and ultimately a suit was filed by defendant
No. 5 seeking his eviction, numbered as Title (Eviction) No. 34 of 2005.
It was stated that the present suit for specific performance of agreement
of sale dated 05.07.2003 was filed to pressurize the defendant No. 5 to
withdraw the Title (Eviction) Suit.
17. The plaintiff had examined 5 witnesses including himself as PW-
5 and the agreement of sale dated 05.07.2003 was marked as Exhibit-1.
On the other hand, the defendants had produced only one witness
namely, Shyam Kr. Verma, who was the defendant No. 5 in the suit.
The defendants also exhibited certified copy of the judgment in Title
(Eviction) Suit No. 34 of 2005 as Exhibit-A and certified copy of the
decree in the aforesaid eviction suit as Exhibit-B. The learned Trial
Court framed as many as 5 issues which are as follows:
Issue No. I - Whether the suit as framed is maintainable
and plaintiff has got valid cause of action?
Issue No. II - Whether there was agreement to sale between
the parties on 05.07.2003 for consideration worth
Rs.78,000/- and dues advance payment of Rs.53,100/- paid
to the defendants as alleged?
Issue No. III - Whether parties to contract have always
ready and willing to perform their contract?
Issue No. IV -Whether the plaintiff is entitled for decree of
Specific Performance of Contract against the defendants?
Issue No. V - Whether the plaintiff is entitled for any relief?
18. The learned Trial Court decided all the issues against the plaintiff
including No. I wherein it was held that plaintiff had no cause of action
and suit was not maintainable. While deciding issue No. II, the learned
Trial Court considered the case of respective parties and observed that
recital of Exhibit-1 nowhere revealed the fact that same was executed
after the set-off of Rs.53,500/- due from the defendants. Further, it was
observed that according to the deed of agreement, the defendants had to
execute an absolute sale deed within two months from the date of the
agreement but there was nothing on record that the plaintiff ever served
notice upon the defendants expressing his willingness and readiness for
the execution of the deed. It further transpired that the deed stated if the
purchaser fails to pay the balance money to the vendors at the time of
registration of sale deed or fails to get the sale deed registered within
the stipulated period, then the vendor shall not remain bound to execute
and register the sale deed in favour of the purchaser. The learned Trial
Court recorded that in the absence of any document showing the refusal
of the defendants to execute the sale deed within the stipulated period
of two months, the agreement was infructuous. The learned Trial Court
also recorded that the deed of agreement did not bear the signatures of
all the heirs of late Dasrath Prasad Swarnkar as such cannot be said to
be a valid agreement. The learned Trial Court was of the view that
plaintiff could not produce any chit of paper to show that he was ready
and willing to get the deed executed as per the condition laid down in
the deed and as a result of which, the deed became inexecutable and the
vendors were not bound to execute and register the sale deed in favour
of the purchaser. The learned Trial Court observed that the deed
agreement was having a number of discrepancies and accordingly it was
not at all enforceable and consequently held that there was no
agreement between the parties for sale vide agreement dated 05.07.2003
and decided issue No. II against the plaintiff.
19. So far as issue No. III regarding readiness and willingness to
perform the contract is concerned, the learned Trial Court observed that
though the plaintiff asserted that he was always ready and willing to
perform his part of the contract but no documents to this effect was
produced and no legal notice was ever sent to the defendants expressing
the willingness to execute the contract. It was further observed that on
other hand the defendants claimed to have paid Rs.53,500/- to the
plaintiff in view of the debt in the form of spare parts taken by the
deceased Dasrath Prasad Swarnkar and the plaintiff had not cross-
examined the defendant's witness No. 1 on this point. Learned Trial
Court was of the view that in the absence of accurate evidence, the
plaintiff had failed to prove that he was always ready and willing to
perform his part of the contract and that the defendants avoided the
performance of the contract and consequently, the issue No. III was also
decided against the plaintiff and in favour of the defendants and the suit
was dismissed.
20. So far as the learned 1st Appellate Court is concerned, the
Appellate Court also considered the material on record and framed
points for determination vide para-7 as follows:
(1) Whether there was a valid and effective agreement
deed between the parties?
(2) Whether the plaintiff has proved his readiness and
willingness to perform has part of the contract as per
the terms of agreement?
21. While deciding point of determination No. (1) at para-11 the
learned 1st Appellate Court referred to the evidence of PW-5, who had
deposed before the Court that an amount of Rs.53,500/- was paid to the
defendants in four installments and that the agreement was executed at
the residence of the defendants. The learned Court also recorded that on
the other hand, the case of the defendants was that they had not received
any payment. The learned Court observed that the defendant on one
hand deposed that Dasrath Prasad Swarnkar had taken auto parts in
credit and at the same time, he deposed that agreement was entered into
in good faith. The learned 1st Appellate Court observed that the
agreement involved in this case was not with Janak Thakker but was
with Hasmukh Thacker, who was the plaintiff in the case and after
discussing the material on record, rejected the argument of the
defendants that their father had taken auto parts in credit from Janak
Thakker to the extent of Rs.53,500/-. The learned 1st Appellate Court
recorded that the defendant No. 4 had not filed any separate written
statement which indicated that the defendant No. 4 and his two sisters
were not interested in the suit property and that the same was being
looked after and taken care of and their interest was also taken care of
by defendant No. 5 and such finding was arrived by observing that it
was only defendant No. 5, who had deposed before the Court and that
the written statement was also filed on behalf of the defendant No. 5
and all other defendants by defendant No. 5 only. The learned Trial
Court observed that the plaintiff had admitted that the agreement did
not bear the signature of defendant No. 4, Rajesh Kumar Verma, as he
did not sign due to the fact that he was out of station and he was assured
that Rajesh Kumar Verma would sign once he comes back. He has also
accepted that at the time of execution of the agreement, Rajesh Kumar
Verma was not present and therefore, his signature could not be
obtained and considering the interest of the family, the other defendants
had signed the agreement.
22. The Appellate Court while considering point of determination
No. (2) regarding readiness and willingness to perform the part of the
contract by the plaintiff observed that total amount of Rs.53,500/- was
paid by the plaintiff and therefore about 70% of the total consideration
amount was already paid and consequently in such circumstance it did
not appear justified to the learned Appellate Court that the plaintiff was
not willing to perform his part of the agreement and set aside the finding
of learned Trial Court on the point of readiness and willingness of the
plaintiff in performing his part of the agreement.
2nd substantial question of law.
23. Upon perusal of the aforesaid quoted paragraphs from the plaint
which has been referred to by the learned counsel for the appellants
during the course of hearing, it is apparent that no specific date and time
has been furnished by the plaintiff in the plaint as to when plaintiff had
approached the defendants to show his readiness and willingness to
perform his part of the contract and only vague and general statements
have been made in the plaint without any specification although as per
the agreement, the sale deed was to be executed and registered within a
period two months from the date of agreement i.e. 05.07.2003. The fact
remains that the suit for specific performance of contract was filed in
relation to the agreement of sale dated 05.07.2003 after expiry of about
two years in the year 2005.
24. Admittedly, there is no document filed on behalf of the plaintiff
including any legal notice to show his readiness and willingness to
perform his part of the contract within the stipulated period in the
agreement i.e. two months from the date of the agreement. Further,
except statement that the plaintiff was ready and willing to perform his
part of the agreement, there is no discloser with regard to the availability
and/or regarding the sources from where the balance consideration
amount was to be paid for the execution of the sale deed and such
money was available with the plaintiff within the period of two months
from the date of the agreement which was the stipulated period for
execution of the sale deed as per the agreement.
25. In the judgment passed by the Hon'ble Supreme Court in the case
of the case of Janardan Das & Ors. (supra), the Hon'ble Supreme
Court was considering the following points for determination as
mentioned in para-7 of the judgment:
"7. .................
I. Whether the plaintiffs proved their continuous readiness
and willingness to perform their part of the contract as
mandated under Section 16(c) of the Specific Relief Act,
1963.
II. Whether the agreement to sell dated 06.06.1993 was
valid and enforceable against Defendant Nos. 6 to 8,
considering that Defendant No. 1 lacked the authority to
act on their behalf without a valid and subsisting
General Power of Attorney.
III. Whether the relief of specific performance, being
discretionary, having been denied by the Trial Court was
rightly granted by the High Court in the facts and
circumstances of the present case."
26. While considering the readiness and willingness of the plaintiff
to the perform the part of the contract with specific reference to Section-
16(c) of the Specific Relief Act, 1963, the Hon'ble Supreme Court dealt
with the issue from para-8 onwards and considered that the agreement
dated 06.06.1993 which required the plaintiffs to ensure that the
defendants would come within three months to execute the sale deed
and it was observed that the plaintiff did not take any concrete steps to
secure the consent or presence of the sisters within the stipulated time.
The Hon'ble Supreme Court held in para-8 that:
Section - 16(c) of the Specific Relief Act, 1963, mandates
that a plaintiff seeking specific performance of a contract
must aver and prove that they have perform or have
always been ready and willing to perform the essential
terms of the contract which are to be perform by them and
such requirement is a condition precedent and must be
established by the plaintiff throughout the proceedings.
The plaintiff must come to the Court with clean hands
demonstrating sincerity and earnestness in fulfilling their
contractual obligations.
27. By referring to an earlier judgment, the Hon'ble Supreme Court
observed that the plaintiff would have to plead that the plaintiff had
sufficient fund or was in a position to raise fund in time to discharge his
obligation under the contract though the deposit of money may not be
required. Readiness and willingness has to be seen in the light of the
obligation under the contract/ agreement of sale.
28. This Court finds that the plaintiff in the present case made vague
statement regarding his readiness and willingness to perform his part of
the contract and that no specific date and much less time was neither
pleaded nor proved through evidence as to when and in what manner
the plaintiff approached the defendants showing his readiness and
willingness to perform his part of the contract within stipulated period
of 2 months and even thereafter. Nothing was stated regarding the
availability/source of fund within stipulated period of 2 months and
even thereafter and suit itself was filed two years after expiry of
stipulated period of two months from the date of the agreement. The
agreement was to culminate into sale deed within a period of two
months from the date of the contract upon payment of balance
consideration amount at the time of registration of the sale deed. There
is neither any specific pleading nor any proof that the plaintiff had
shown his readiness and willingness to perform his part of the contract
within the period of two months from the date of the agreement, which
was a stipulated time for performing the contract. Such vague statement
made by the plaintiff with regard to readiness and willingness and
without any specification regarding date, time and availability of fund,
much less proof of the same, cannot translate into a finding that the
plaintiff was ready and willing to perform his part of the contract,
merely because 70% of the consideration money in connection with the
sale of the suit property was already paid by the plaintiff to the
defendants. Payment of 70% of the consideration amount prior to the
date of agreement itself cannot be said to be a circumstance that the
plaintiff was ready and willing to perform his remaining part of the
agreement.
29. This Court is of the considered view that the finding recorded by
the learned 1st Appellate Court on the point of readiness and willingness
merely on the ground that 70% amount was already paid at the time of
the agreement is ex-facie perverse.
30. As a cumulative effect of the aforesaid findings, the 2nd
substantial question of law is answered in favour of the appellants
and against the respondent.
1st substantial question of law.
31. It is not in dispute that name of defendant No. 4 found place in
the agreement of sale but he did not sign the agreement. The agreement
did not reveal that the defendant No. 5 was representing the defendant
No.4 as well. The common ancestor namely Dashrath Prasad Swarnkar
had two married daughters, who were neither party to the agreement
nor party to the suit. Neither the agreement, nor the pleadings reveal
that defendant no.5 was authorized to act on behalf of defendant no.4
and his sisters also. Admittedly, in the written statement an objection
was taken with regard to the fact that the defendant No. 4 was not a
party to the agreement and that two sisters were also not party to the
agreement and admittedly, the property stood in the name of their father
namely Dasrath Prasad Swarnkar.
32. In the judgement passed by the Hon'ble Supreme Court in the
case of Janardan Das (supra) where the point of determination no. (II)
at paragraph 7 quoted above and its findings reveals that the signatory
of the agreement defendant no.1 lacked authority to sign the agreement
on behalf of the other defendant nos. 6 to 8 it was held that the
agreement of sale was incomplete and unenforceable. It was held that
the plaintiff's knowledge of the necessity of securing sister's consent
and their failure to secure consent rendered the agreement ineffective
and it was held that the agreement could not be specifically enforced
against defendant no.6 to 8 and the plaintiff could not claim right over
their shares in the property based on the agreement. The Hon'ble
Supreme Court then considered the discretionary power to grant
specific performance of agreement and observed in paragraph 20 and
21 of the judgement as under:-
"20. In the present case, several factors weigh against
granting specific performance. The agreement to sell was
incomplete and unenforceable against Defendant Nos. 6 to 8,
who held a majority share in the property; enforcing such an
agreement would be inequitable. The plaintiffs failed to
demonstrate readiness and willingness to perform their
obligations and did not take necessary steps to secure the
consent of all the co-owners. Granting specific performance
would unfairly prejudice the defendants, especially Defendant
Nos. 6 to 8, who never consent to the sale to the plaintiffs.
Furthermore, the plaintiffs can be adequately compensated by
a refund of the earnest money with interest; there is no
evidence to suggest that monetary compensation would not
suffice.
21. Section 20 of the Specific Relief Act, 1963 prior to
amendment by Act No. 18 of 2018 which was brough into
effect w.e.f. 1.10.2018 categorically provided that the relief of
specific performance is discretionary in nature and the court
is not bound to grant such relief merely because it is lawful to
do so. But the discretion of the court has to be on sound and
reasonable principles."
33. In the present case also, the defendant no.4 was named in the
agreement but did not sign and none of the other signatories including
defendant no.5 were authorized to sign on behalf of the defendant no.4
and it was also not disclosed in the plaint that the defendant no.4 had
not signed much less any explanation as to the reason for not signing by
defendant no.4. In such circumstances the agreement was itself
incomplete for want of signature of defendant no.4, though named but
admittedly not signed. Further the two sisters of defendants were neither
signatory to the agreement nor party in the suit and thus the agreement
and also the decree in the suit cannot bind the sisters. This Court is of
the considered view that the learned 1st appellate court was not justified
in drawing a conclusion that defendant no.5 was authorized to take care
of the interest of the defendant no.4 and as the defendant no.4 neither
filed any written statement separately nor gave his evidence separately
and that the two sisters were not interested in the property and that the
defendant no.5 had explained as to why the defendant no. 4 had not
signed the agreement as he was out of station. Such findings are beyond
the scope of the pleadings and the case of the respective parties. The
defendant no.4 was shown in the agreement in his individual capacity
and was supposed to be one of the signatories and there is nothing
mentioned in the agreement or in the plaint or in the written statement
that he had authorized the defendant no.5 or anyone else to sign or act
on his behalf. This court is of the considered view that the agreement
was itself an incomplete/not sustainable and hence not an enforceable
document. This court is of the considered view that the learned trial
court was right in concluding that the agreement (Exhibit-1) was not a
valid agreement and not enforceable as one of the co-sharers that is
defendant no.4 was not a signatory to the agreement. The findings of
the learned 1st Appellate Court in this regard is perverse and is set-aside.
34. The 1st substantial question of law is answered in favour of the
appellants and against the respondent (plaintiff).
35. So far as the judgment relied upon by the respondents reported
in Surinder Singh Vs. Kapoor Singh (dead) through LRS & Ors.
[(2005) 5 SCC 142] is concerned, the same does not apply to the facts
and circumstances of this case. In the said case, the appellant before the
Hon'ble Supreme Court had entered into the agreement on behalf of
himself and his sister on the premise that he had the requisite authority
to do so and in the facts of the said case, the Hon'ble Supreme Court
was of the view that the equity was in favour of grant of decree for
specific performance of contract in respect of the share of the appellant
rather than refusing the same. In the present case, the plaintiff knew that
the defendant had not signed the agreement though made party and on
the face of the agreement no other person was authorised on behalf of
the defendant no.4 to sign the agreement and thus the plaintiff knew that
the agreement was not complete, still proceeded to file suit for specific
performance of agreement. The facts of the present case are totally
different from the fact of the aforesaid case relied upon by the
respondent.
36. Further, considering the fact that even the sisters were not party
to the agreement and defendant no.4 was admittedly not a signatory to
the agreement and neither the defendant no.4 nor the sisters had
authorized the defendant no.5 or other defendants to act on their behalf
and sisters were not even party to the suit, this court is of the view that
the plaintiff is not entitled to any discretionary relief with regards to
enforcement of the agreement against the signatories to the agreement
to the extent it relates to their undivided share in the property of the
common ancestor.
37. In view of both the substantial questions of law having been
answered in favour of the appellants and against the respondent, the
Appellate Court's judgment on the aforesaid two point of substantial
questions of law are set aside and consequently the Appellate Court's
decree is also set-aside and this appeal is allowed in the aforesaid terms.
38. However, the learned Appellate Court has recorded that an
amount of Rs.53,500/- was paid as recorded in the agreement which
was signed by Smt. Shova Devi, Sri Krishna Prasad Verma, Sri Suresh
Prasad Verma, Sri Shiva Kumar Verma, Sri Rakesh Kumar Verma and
Sri Sanjay Kumar Verma i.e. all the defendants except defendant No. 4
(Rajesh Kumar Verma). Therefore, Rs.53,500/- is directed to be repaid
to the plaintiff jointly by the defendants except defendant No. 4 with
interest @ 12% simple from the date of agreement i.e. 05.07.2003 till
the date of actual payment, within a period of two months from today.
The amount with interest be deposited in the court within the aforesaid
time failing which it will be open to the plaintiff to realize the same
through the process of law.
39. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Kunal/-
