Orissa High Court

Ajaya Kumar Nayak vs Prem Swarup Agrawal & Another on 12 February, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    RSA No.133 of 2014

[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.]


Ajaya Kumar Nayak                    .....   Appellant


                         -Versus-


Prem Swarup Agrawal & Another        ....    Respondents


Advocate(s) appeared in this case:


For the Appellant         :    M/s. A.P. Bose, N. Hota,
                               S.S. Routray, V. Kar &
                               D.J. Sahoo, Advocates

For Respondents           :    M/s. A. Mohanty,
                               B. Baivab, J.N. Mohanty &
                               S.P. Biswal, Advocates


CORAM:
         JUSTICE SASHIKANTA MISHRA

                       JUDGMENT

12.02.2025

SASHIKANTA MISHRA, J.

Plaintiff is the appellant against a confirming

judgment.

2. The judgment passed by learned Additional

District Judge, Rourkela in RFA No. 18 of 2010 on

10.12.2013 followed by decree is impugned whereby the

judgment passed by learned Civil Judge (Senior Division),

Rourkela in CS No.153 of 2007 on 07.05.2010 followed by

decree was confirmed.

3. For convenience, the parties are referred to as per

their respective status in the Trial Court.

4. The Plaintiff-Appellant filed the suit for specific

performance of contract and in the alternative for recovery

of Rs.65,000/- from defendant No.1 and incidental reliefs.

5. The case of the plaintiff, briefly stated is that

defendant no.1 is the recorded tenant of the suit land and

he had prior acquaintance with the plaintiff. The

defendant no.1 negotiated with him for sale of the suit

land and it was agreed between them that the plaintiff

shall purchase the suit land for a consideration of

Rs.1,90,000/. The plaintiff paid Rs.65,000/- towards

advance by way of demand draft drawn in the name of

defendant no.2, wife of defendant no.1. As per the oral

agreement plaintiff went to the house of the defendant on

16.06.2007 along with one Baban Prasad to pay the

balance consideration amount of Rs.1,25,000/- but

defendant no.1 did not receive the same on the plea of his

personal inconvenience. The plaintiff returned and

thereafter made several correspondences with defendant

no.1 over telephone and requested for registration of the

sale deed in his favour. But defendant no.1 did not agree

rather, he negotiated with other prospective buyers to sell

the suit land. Hence, the suit.

6. The defendant contested the suit by filing written

statement. The basic facts such as, agreement for sale of

the land, consideration of Rs.1,90,000/- and receipt of

Rs.65,000/-towards advance were admitted. However, the

plea of the plaintiff of offering to pay the balance

consideration amount was specifically denied. It was

stated that as per the agreement, the plaintiff was

required to pay the balance amount before the Sub-

Registrar within a week after payment of the advance but

he failed to do so. The defendants never received any letter

containing the original demand draft and advocates

notice. He rather received telephonic call from the I.I.C., of

Sector-3 Police Station, as the plaintiff had made

allegations against him in respect of the suit land.

7. His further specific case is that as the plaintiff did

not pay the balance consideration money before

18.06.2007, he could not execute the sale deed in his

favour and that he is ready and willing to return the

advance money received by him.

8. Basing on the rival pleadings, the Trial Court

framed the following issues for determination:

            (i)     Is the suit maintainable ?
            (ii)    Has the plaintiff any cause of action to
                    file the suit?

(iii) Is the suit hit under section 40 of the Indian Contract Act and under section 34 of the Transfer of Property Act?

(iv) Is there any agreement for sale between the plaintiff and the defendant on 11.06.2007 ?

(v) Has the plaintiff performed his part of contract dated 11.6.2007 and paid the full consideration money in time?

(vi) Is the defendant No.1 liable to execute a registered sale deed in favour of the plaintiff as per agreement dated 11.06.2007 or to return the advance money of Rs.65,000/- to the plaintiff?

(vii) To what relief or reliefs the plaintiff is entitled ?

9. After analyzing the oral and documentary

evidence adduced by the parties and the contentions put

forth by them, the Trial Court held that it was established

that a sum of Rs.65,000/- was received by defendant no.1

towards part payment of the consideration money of

Rs.1,90,000/-. The Trial Court further found that the

evidence of P.W.2 i.e., (Baban Prasad) is not consistent

with the evidence of P.W. 1 (plaintiff) regarding the place

where the balance consideration of Rs.1,25,000/-was

offered to defendant no.2. As such, it was held that the

plaintiff failed to prove that he performed his part of the

contract by paying the balance consideration money

before 18.06.2007 for which the defendant no.1 cannot be

compelled to execute and register the sale deed in his

favour. In the circumstances, the defendant no.1 is liable

to pay the advance money received by him from the

plaintiff. On such findings, the Trial Court decreed the

suit in part directing the defendant no.1 to refund

Rs.65,000/ to the plaintiff within one month with further

directions regarding payment of interest for default.

10. The plaintiff carried the matter in appeal to the

District Court. The first Appellate Court framed the point

for determination as to whether the judgment of the Trial

Court without allowing the prayer for specific performance

is sustainable. The first Appellate Court also scanned the

oral and documentary evidence on record and took note of

the provision under Section 20 of the Specific Relief Act,

1963, that such relief is purely discretionary in nature.

Looking at the evidence, the first Appellate Court found

that the time was essence of the contract inasmuch as the

balance amount was to be paid on or before 18.06.2007.

The inconsistency in the evidence of PWs.1 and 2 and the

contradictions present therein were also taken note of. On

such findings, the first Appellate Court found no reason to

interfere with the impugned judgment and decree. The

appeal was thus dismissed.

11. Being aggrieved, the plaintiff has filed the

present Second Appeal, which has been admitted on the

following substantial question of law:

Whether the defendants-respondents have made out a case for refusal of specific performance of contract under Section 20(2) of the Specific Relief Act, 1963?

12. Heard Mr. A.P. Bose, learned counsel for the

plaintiff-appellant and Mr. A. Mohanty, learned counsel

for the defendant-respondent.

13. Mr. Bose would argue that both the Trial Court

as well as the first Appellate Court have committed error

in giving undue weightage to only a portion of PW.2's

evidence without reading the same as a whole. According

to Mr. Bose, if the evidence of PWs. 1 and 2 are read as

whole it would prove that the plaintiff had gone to the

residence/office of defendant no.1 and offered to pay the

balance consideration amount, which was refused to be

accepted by defendant no.1. Mr. Bose, also argued that

the defendant did not come to the witness box but sent

his Power of Attorney-Rabindra Kumar Nayak, on his

behalf. The Trial Court should have drawn adverse

inference against defendant no.1 on such ground.

Further, both the Courts below ignored the fact of

payment Rs.65,000/- by the plaintiff which amounts to

part performance as envisaged under Section 53(A) of the

TP Act. The previous and subsequent conduct of the

plaintiff clearly proves that he was ready and willing to

perform his part of the contract. But the defendant

refused to do so. Mr. Bose, concludes by submitting that

the suit of the plaintiff for specific performance ought to

have been decreed by directing defendant no.1 to register

the suit land in his favour.

14. Per contra, Mr. A. Mohanty, argued that firstly

no substantial question of law is involved in the Second

Appeal, which is directed against concurrent findings of

fact. Even otherwise, the plaintiff failed to prove that he

had performed or was ready to perform the terms of the

contract and therefore, he must be held to have failed to

satisfy the conditions under Section 16(C) of the Specific

Relief Act. The payment of advance amount cannot

discharge the burden cast upon the plaintiff in this

regard. Mr. A. Mohanty, would further argue that there

are material contradictions and inconsistencies in the

evidence of PW.1 and 2 regarding the place where the

balance consideration amount was allegedly offered by the

plaintiff. Mr. Mohanty, would also argue that the ground

that adverse inference should have been drawn by the

Trial Court against defendant no.1 for not coming to the

witness box, has been taken for the first time during the

Second Appeal and is, therefore, not worthy of

consideration. Moreover, PW.2 clearly admitted that he

had not seen money being offered by plaintiff nor was

present during the discussion between them. Time being

of the essence of the contract the burden was on the

plaintiff to discharge the burden, which he failed.

15. In view of the substantial question of law

framed, this Court is to consider whether the Courts

below committed any illegality in refusing the decree for

specific performance of contract. Admittedly, there was an

oral contract between the plaintiff and defendant no.1 for

sale of the suit land by the latter to the former for total

consideration of Rs.1,90,000/- out of which, Rs.65,000/-

was paid by plaintiff to defendant no.1 towards advance.

The balance amount of Rs.1,25,000/- remained to be

paid.

16. According to the defendants the balance

amount was to be paid on or before 18.06.2007. The

plaintiff admitted the above fact while deposing as PW.1

during the trial. Thus, time was essence of the contract as

rightly held by the First Appellate Court to maintain the

suit for specific performance of contract. It is necessary

for the plaintiff to prove that he is ready and willing to

perform his part of contract. In fact, Section 16 bars such

relief if the above requirement is not satisfied. Clause (c)

of Section 16 of the Specific Relief Act, being relevant is

quoted herein below:

"16. Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-

        (a) xxx         xxx
        (b xxx           xxx

(c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.--For the purposes of clause (c),--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction."

17. Therefore, the burden is always on the plaintiff

to prove that he was ready and willing to perform his part

of the contract. In the instant case, both the Courts

below, after meticulously analyzing the oral evidence,

particularly that of PWs.1 and 2, have held that the

plaintiff could not discharge the onus of proving that he

was ready and willing to perform his part of the contract.

In other words, the plaintiff's plea that he had offered the

balance consideration amount to defendant no.1 was not

believed by both the Courts below because of the inherent

contradictions and inconsistencies present in the

evidence.

18. It is trite that the plaintiff, who claims a decree

of specific performance of contract needs to stand on his

own legs. He must come forward with clinching evidence

showing his readiness and willingness to perform the

essential terms of the contract. As already stated both the

Courts below found that the plaintiff never did so. This

Court does not find anything wrong in the factual findings

of the Courts below to be persuaded to interfere.

19. Another significant aspect that is required to be

pointed out is that the defendants in their written

statement specifically took the plea that the plaintiff was

not financially capable of paying the balance amount. In

this regard also the plaintiff did not adduce any evidence

whatsoever. In the case of UN Krishnamurthy vs. AM

Krishnamurthy, (2023) 11 SCC 775, the Supreme Court

held as follows:

"20.It is well settled that, in a suit for specific performance of an agreement, it is for the plaintiff to prove his readiness and willing ness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the plaintiff to show that he was in a position to pay the balance money. The plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money.

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."

20. A plea has been taken that having paid the

advance amount the same amounts to part performance

of contract as mandated under Section 53(A) of the TP

Act. This contention can be considered only to be rejected

for the reason that the payment of advance amount

cannot be treated as part performance because the

contract was entered into on such basis with the rider

that the balance amount was to be paid within a

stipulated time. So part performance in the present case

entails payment of the balance consideration amount. If

the same is paid then the onus shifts to the defendants to

perform their part of contract namely, to register the suit