Sikkim High Court
Tshering Dorjee Lepcha vs Shri Chimbu Lepcha And Ors on 30 May, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
Dated : 30th May, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.03 of 2021
Appellant : Tshering Dorjee Lepcha
versus
Respondents : Chimbu Lepcha and Others
Appeal under Section 100 read with Section 151
of the Code of Civil Procedure, 1908
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Appearance
Mr. B. Sharma, Senior Advocate with Mr. Safal Sharma, Advocate for the
Appellant.
Mr. Dewen Sharma Luitel, Advocate with Mr. Bhaichung Bhutia,
Advocate for the Respondents No.1 and 2.
Mr. S. K. Chettri, Government Advocate for the Respondents No.3 to 5.
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JUDGMENT
Meenakshi Madan Rai, J.
1. This second appeal has meandered into this Court on the
dis-satisfaction of the Appellant with the impugned Judgment and
Decree, of the Learned District Judge, East Sikkim, at Gangtok,
dated 30-09-2021, in Title Appeal No.02 of 2020 (Chimbu Lepcha
and Another vs. Tshering Dorjee Lepcha and Others). The
impugned Judgment set aside the Judgment and Decree of the
Learned Trial Court, dated 30-04-2019, in Title Suit No.01 of 2016,
(Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others). The
Learned Trial Court had decreed the suit of the Plaintiff, the
Appellant herein.
2. To comprehend the matter in its entirety, the brief facts
of the dispute are required to be considered. The Plaintiff (Appellant
herein) filed a suit for Declaration and Specific Performance of
Contract, under Section 10 of the Specific Relief Act, 1963
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
(hereinafter, the "Specific Relief Act"), against the Defendants No.1
and 2 (Respondents No.1 and 2 herein), claiming that, the
Defendant No.1 had sold him three plots of land, situated at Lingzey
Block, Assam Lingzey, East Sikkim, with the consent of his son, the
Defendant No.2, at a mutually fixed consideration value of ₹
12,00,000/- (Rupees twelve lakhs) only. An advance payment of ₹
2,20,000/- (Rupees two lakhs and twenty thousand) only, is said to
have been made by the Plaintiff to the Defendant No.1, on 27-10-
2014, reflected in Exhibit 1 "Dhan Rashid" (money receipt), in the
presence of the wife of Defendant No.1, his daughter, his son and
four other independent witnesses, whose names appear in the said
document. Consequent upon such deposit, Exhibit 2, a Sale Deed
document, was executed on 14-01-2015 between the Defendant
No.1 as the seller and the Plaintiff as the purchaser, in the presence
of two witnesses viz.; Tirtha Ram Sharma (PW-6) and Santosh
Subba (PW-1). On the same day, i.e., 14-01-2015, another
document Exhibit 3, a "Bandobasta Patra" (Agreement), was
executed between the same parties, in the presence of independent
witnesses and the wife, son and daughter of the Defendant No.1.
They had no objection to the registration of the sold property, in the
name of the Appellant. A Certificate to that effect, Exhibit 4, was
signed by the family members of the Defendant No.1 including one
daughter and one son. Pursuant thereto, a spot verification was
conducted by the 'Amin' (Surveyor), and a report, Exhibit 5
prepared. All relevant documents were then submitted in the Office
of the Registrar/Sub-Registrar for registration of the suit land in the
name of the Plaintiff, which however did not fructify as the
Defendant No.2 objected to it. Notwithstanding the Plaintiff's
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
appearance as summoned before the registering authority post the
objection, the Defendant No.1 failed to enter appearance, despite
several verbal requests made to them by the Plaintiff. That, the
Plaintiff is willing to pay the balance amount of ₹ 9,80,000/-
(Rupees nine lakhs and eighty thousand) only, upon which, the
Defendant No.1 is duty bound to transfer the suit lands for
performance of the contract. Hence, the prayers in the Plaint,
seeking a decree declaring that the Defendant No.1 as the owner of
the suit land had executed the Sale Deed in the Plaintiff's favour,
and thereby has a right to register the Sale Deed in his name, that
he has acquired right, title and interest over the suit land. That, the
Defendant No.3 be directed to compulsorily register the Sale Deed.
3. The Defendants No.1 and 2 opposed the claims of the
Plaintiff by averring that, in fact in October 2014, one Tirtha Ram
Sharma (PW-6), had offered to loan an amount of ₹ 2,30,000/-
(Rupees two lakhs and thirty thousand) only, to the wife of the
Defendant No.1, to enable her to meet the educational expenses of
her daughter. Later he approached her to sell him the disputed
property. There being a legal bar to transferring the property of a
tribal (the community to which the Defendants No.1 and 2 belong),
Tirtha Ram Sharma sought to register the property in the name of
the Plaintiff, Tshering Dorjee Lepcha, the Appellant herein.
Consequently, on execution of the Sale Deed dated 14-01-2015,
Tirtha Ram Sharma took the Parcha (Title Deed) from the
possession of the Defendant No.1, which was later recovered from
him on a complaint to the concerned Police Station. That, following
the execution of Exhibit 2, neither possession nor interest over the
disputed land was transferred to the Plaintiff but Tirtha Ram Sharma
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
started constructing an approach road on it, despite the objection of
the family members of the Defendant No.1.
(i) In their Counter-Claim the Defendants No.1 and 2
besides the facts averred in their written statement, reiterated that,
the Defendant No.1 being an illiterate person, signed Exhibit 2,
unaware of the fact that the property would be transferred in the
name of the Plaintiff, instead of Tirtha Ram Sharma. The reliefs
sought by them in the Counter-Claim was for a declaration that the
Defendant No.1 was the absolute owner of the suit land and for
cancellation of the Sale Deed, dated 14-01-2015.
(ii) The records of the Learned Trial Court reveal that the
Defendants No.3, 4 and 5 appeared therein intermittently, they did
not file their response to the Plaint. It appears that the Learned
Trial Court was remiss in not declaring them ex parte despite their
non-appearance after the Court framed the issues.
(iii) On the basis of the pleadings of the parties, the
following four issues were struck by the Learned Trial Court for
determination;
(i) Whether the Defendant had executed the Sale Deed in
favour of the Plaintiff duly entering into mutual agreement
between Defendant No.1 and the Plaintiff as seller and
buyer on 14-01-2015, with regard to suit property bearing
plot nos.111, 536 and 540 measuring 0.530 hectares,
0.0640 hectares and 0.1200 hectares, situated in Linzey
Block, Soureni, Assam Linzey, East Sikkim?
(ii) Whether the Plaintiff has right to registration of the Sale
Deed executed by the Defendant No.1 and whether NOC
was given by the family members of the Defendant No.1
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
including Defendant No.2 for the sale of the suit property
in presence of witnesses to the Plaintiff?
(iii) Whether the Plaintiff is entitled for rights, title and interest
over the suit property and whether the present suit filed by
the Plaintiff is maintainable or not?
(iv) Whether the Plaintiff has made an advance payment of ₹
2,20,000/- (Rupees two lakhs and twenty thousand) only,
to Defendant No.1 on 27-10-2014?
(iv) The Plaintiff examined six witnesses in support of his
case, while the Defendants No.1 and 2 examined Kamal Kumari Rai,
Bishnu Maya Rai, Reena Lepcha and Tshering Lhamu Lepcha as their
witnesses. The Defendants No.3, 4 and 5 did not examine any
witness.
4. On consideration of the evidence furnished, in issue
no.1, the Learned Trial Court observed that as Exhibits 1, 2, 3 and 4
stand proved, the transaction and the issue was decided in favour of
the Plaintiff. In issue no.2, it was concluded that the signatories to
Exhibit 3 had authenticated the transaction and the Plaintiff would
have the right to register the suit property. In issue no.3, while
referring to Exhibits 1, 2, 3 and 4 the Court observed that the
Plaintiff was ready and willing to perform the essential terms of the
contract, under Section 16(c) of the Specific Relief Act and this issue
was decided in favour of the Plaintiff. In issue no.4, the Learned
Trial Court observed that enough evidence was furnished by the
Plaintiff and the Defendants had not disputed the signatures
appearing on Exhibit 1, 2 and 3, which accordingly stood proved in
favour of the Plaintiff. The suit was decreed in favour of the
Plaintiff.
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
5. Aggrieved by the Judgment, the Defendants No.1 and 2
were before the Learned First Appellate Court in Title Appeal No.02
of 2020. The Learned First Appellate Court vide the impugned
Judgment, in issue no.1 disagreed with the finding of the Learned
Trial Court and set it aside with the observation that the findings of
the Learned Trial Court were perverse and unsustainable and that, it
was not the Plaintiff, but PW-6 Tirtha Ram Sharma (Sapkota) who
was the real purchaser of the suit lands which the Learned Trial
Court had overlooked and simply based its finding on the tenor of
Exhibits 2 and 3, while the material evidence on record would belie
the recitals in the documents. Taking up issues no.2 and 3 together
and concluding differently from the findings of the Learned Trial
Court, the Appellate Court held that, the Plaintiff was not entitled to
the registration of the concerned Sale Deed which was a sham
transaction. In issue no.4, it observed that though the Defendants
No.1 and 2 may have admitted that they had put their signatures on
the various documents above, it was only seen to have been made
with regard to the sham sale transaction and that strictly speaking,
issue no.4 had not been proved by the Plaintiff. Accordingly, the
findings of the Learned Trial Court on the issues (supra) were found
to be erroneous and the Judgment and Decree of the Learned Trial
Court were thus set aside, which has given rise to this Second
Appeal, which was admitted on the following substantial question of
law;
(i) Whether the First Appellate Court while holding that the
transaction was a sham transaction erroneously set aside
the Order of the Learned Trial Court, despite the weight of
evidence being tilted in favour of the Appellant in light of
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
the evidence pertaining to execution of documents being
Exhibit-1 to Exhibit-5?
6. The parties shall hereinafter be referred to as per their
litigative status before this Court.
7. Learned Senior Counsel for the Appellant walked this
Court through the averments of the parties with emphasis on the
documents relied upon and contended that vide Exhibit 2, the Sale
Deed document, dated 14-01-2015, the advance money of ₹
2,20,000/-(Rupees two lakhs and twenty thousand) only, having
been deposited with Respondent No.1, the Appellant took over
possession of all three disputed plots. That, Exhibit 3 "Bandobasta
Patra", executed on the same day viz.; 14-01-2015 refers to the
agreement, dated 27-10-2014 by which the transaction between the
disputing parties took place. That, the property described in the
second portion of Exhibit 3 is however incoherent and in fact is not
concerned with the transacted lands. That, Exhibit 4, is the No
Objection Certificate (NOC) issued by the family members of the
Respondent No.1, indicating their knowledge of the transaction and
approval of the same. That, although the daughters of the
Respondent No.1 have not signed on Exhibit 4, it is of no
consequence as the Sikkim Registration of Documents Rules, 1930,
makes no provision for such NOC from the family members of the
seller. That, Section 58 of the Indian Evidence Act, 1872
(hereinafter, the "Evidence Act") comes into play in the context of
Exhibit 1 as the amount of ₹ 2,20,000/-(Rupees two lakhs and
twenty thousand) only, having been paid to the Respondent No.1
has not been disputed. That, the Respondent No.1 blocked the
registration process even though the Appellant is willing to pay the
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
balance amount agreed to for the sale. In this context, Learned
Senior Counsel invited the attention of this Court to Dheeraj
Developers Pvt. vs. Dr. Om Prakash Gupta and Others . Reliance was
also placed on M/s Summit Online Trade Solutions (Pvt.) Ltd. and
Another vs. State of Sikkim and Another , Shri Bishnu Prasad Bhagat vs.
Shri Prakash Basnett , Taramani Devi Agarwal vs. M/s. Krishna
Company , Union of India vs. Ibrahim Uddin and Another and Sections
10, 16 and 17 of the Specific Relief Act and Section 55 of the
Transfer of Property Act, 1882 (hereinafter, the "TP Act") to fortify
the case of the Appellant. That, neither in their averments, nor in
their evidence have the Respondents No.1 and 2 denied the
execution of the documents and the contention that Tirtha Ram
Sharma was the actual vendee is an unproved allegation. That, the
transaction having been proved by the documents (supra), the suit
be decreed in favour of the Appellant in view of Order VI Rule 12 of
the Code of Civil Procedure, 1908 (hereinafter, the "CPC") and the
Judgment of the Learned First Appellate Court be set aside.
8. Learned Counsel for the Respondents No.1 and 2 for his
part contended that the Respondent No.1 has deposed that he
signed on Exhibit 1 under duress. That, none of the witnesses to
Exhibit 1 have said that money changed hands during the execution
of Exhibit 1. PW-1, Santosh Subba said to be a witness to the
Exhibit 2 when confronted with the document, stated that, his
signature does not appear on it. Reference was also made to the
evidence of PW-2 Kaching Lepcha and that his evidence is
contradictory and does not support the case of the Appellant. He
AIR 2016 SC 1438
SLR (2018) SIKKIM 1475
SLR (2019) SIKKIM 416
SLR (2018) SIKKIM 1269
(2012) 8 SCC 148
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
denied having signed on any document, except on Exhibit 5, as
boundary holder. That, in view of the evidence furnished there is no
proof that the Appellant had fulfilled his obligation towards the
transaction. That, Tirtha Ram Sharma was in fact the actual
purchaser, hence the Appeal deserves a dismissal. To buttress his
submissions reliance was place on Mettur Beardshell Ltd. vs. Workmen
and Another , State of Tamil Nadu and Others vs. K. Shyam Sunder and
Others , Ramjan Khan and Others vs. Baba Raghunath Dass and Others ,
Major Gen. Darshan Singh (D) by Legal Representatives and Another vs.
Brij Bhushan Chaudhary (D) by Legal Representatives , Lourdu Mari
David and Others vs. Louis Chinnaya Arogiaswamy and Others and
Placido Francisco Pinto (D) by Lrs and Another vs. Jose Francisco Pinto
and Another .
9. The arguments of Learned Government Advocate for the
Respondents No.3 to 5 was confined to Exhibit 7, which is the
application filed by the Appellant before the Respondent No.5
whereby Exhibit 8, a miscellaneous case being Misc. Case No.
105/DM/E of 2015 (Tshering Dorjee Lepcha vs. Reena Lepcha and
Others) was registered and notice issued to the Respondent No.1,
who failed to appear before the registering authority. That, the
registration process was thus placed on hold. Relying on Sughar
Singh vs. Hari Singh (Dead) through Legal Representatives and Others
it was urged that the Plaintiff cannot be punished by refusing the
specific performance despite the fact that the execution of the
agreement to sell in his favour has been established and proved and
he is ready and willing to perform his part of the contract.
(2006) 9 SCC 488
(2011) 8 SCC 737
1990 SCC OnLine MP 191
(2024) 3 SCC 489
(1996) 5 SCC 589
2021 SCC OnLine SC 842
(2021) 17 SCC 705
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
10. The submissions advanced by Learned Counsel for the
parties (supra) were heard in extenso and duly considered. The
pleadings, all evidence, documents on record and the Judgments of
the Learned Courts below have been carefully perused.
11. Before delving into the merits of the matter the
permissible parameters in navigating a Second Appeal may be
examined.
(i) Section 100 of the CPC provides for a second appeal
which shall lie to the High Court from every decree passed in
appeal, by any Court subordinate to it, if the High Court is satisfied
that the case involves a substantial question of law. On being
satisfied that a substantial question of law is involved, the High
Court is to formulate that question and the appeal shall be heard on
the question so formulated. The Section also provides that the
Respondent at the hearing of the appeal shall be allowed to argue
that the case does not involve any such substantial question. The
Court is further, for reasons to be recorded, permitted to formulate
any other substantial question of law, not previously formulated by
it, if it is satisfied that the case involves such question. In Roop
Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs. , it was
reiterated that under Section 100 CPC the jurisdiction of the High
Court to entertain a second appeal is confined only to such appeals
which involve a substantial question of law and it does not confer
any jurisdiction on the High Court to interfere with pure questions of
fact while exercising its jurisdiction under Section 100 CPC. That
having been said, in Hero Vinoth (Minor) vs. Seshammal14, it was
elucidated that inference or appreciation of facts from recitals or
(2000) 3 SCC 708
(2006) 5 SCC 545
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
contents of a document are questions of fact. However, the legal
effect of the terms of a document or construction of document
involving application of any principle of law are questions of law. In
Kulwant Kaur and Others vs. Gurdial Singh Mann (Dead) by LRs. and
Others it was observed that Section 100 has introduced a definite
restriction on the exercise of jurisdiction in a second appeal so far as
the High Court is concerned. That, the Code of Civil Procedure
(Amendment) Act, 1976, introduced such an embargo for definite
objectives and while it is true that in a second appeal a finding of
fact, even if erroneous will generally not be disturbed but where it is
found that the findings stand vitiated on wrong test and on the basis
of assumptions and conjecture and resultantly there is an element of
perversity involved therein, the High Court will be within its
jurisdiction to deal with the issue. That, this is however, only in the
event if such a fact is brought to light by the High Court explicitly
and the Judgment should be categorical as to the issue of perversity
vis-à-vis the concept of justice. That, perversity itself is a
substantial question worth adjudication but a categorical finding on
the part of the High Court as records perversity must exist. Thus, in
determining second appeals it emerges with clarity that Section 100
CPC does not confer any jurisdiction on the High Court to interfere
with pure questions of fact.
12. It would be beneficial while on this subject, to briefly
peruse the contents of Section 103 of the CPC which provides as
follows;
"103. Power of High Court to determine
issues of fact.--In any second appeal, the High Court
may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the
appeal,--
(2001) 4 SCC 262
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
(a) which has not been determined by the
lower Appellate Court or both by the Court
of first instance and the lower Appellate
Court, or
(b) which has been wrongly determined by
such Court or Courts by reason of a
decision on such question of law as is
referred to in section 100."
The parameters of determining a second appeal having been
clearly delineated hereinabove.
13. The Learned First Appellate Court was of the view that
the transaction of sale was a sham and observed the Learned Trial
Court had overlooked the material admissions that appeared in the
evidence and based its finding on the apparent tenor of Exhibits 2
and 3 while the material evidence would however clearly belie the
recitals in the documents. The Court reasoned that no sale
transaction had actually taken place between the Appellant and the
Respondent No.1 as the Appellant during his cross-examination had
admitted that he came to know the Respondent No.1 and the wife of
the Respondent No.1 only after the institution of this case on being
introduced by Tirtha Ram Sharma (PW-6). That, even otherwise no
bank records or any other document is seen to have been placed
before the Learned Trial Court by the Plaintiff to establish that he
had the financial capacity to pay the alleged advance amount or the
balance sale consideration amount. Thus, in light of the nature of
evidence, according to the Learned First Appellate Court, even
though the Respondents No.1 and 2 may have admitted that they
have put their signatures on the various documents above it, it was
only with regard to the sham sale transaction above.
(i) Notwithstanding the observation of the Learned First
Appellate Court that the transaction of sale was a sham transaction
the Learned Court failed to consider that none of the witnesses had
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
proved the contents of Exhibits 1 to 5, save the Appellant. The
Learned First Appellate Court also did not examine whether the
documents Exhibits 1 and 3 which dealt with the transaction of
immovable property were required to be registered, in view of the
provisions of the Sikkim Registration of Documents Rules, 1930.
14. While considering the probative value Exhibits 1 to 5, it
would be essential to consider the evidence of the witnesses, PW-1,
Santosh Subba stated that Exhibits 1, 2 and 3 were prepared in the
house of PW-6 but shed no light on the contents. PW-2 and PW-3
deposed that they were unaware of the reason for the instant suit or
the documents, PW-4 categorically denied that PW-6 had purchased
the suit property from the Respondent No.1 in the name of the
Appellant. He did not identify the documents. PW-5 expressed the
same view as PW-4 and denied that PW-6 had purchased the land in
the name of the Appellant. He denied knowledge of the documents
that were prepared during the sale. PW-6 admitted that Exhibit 1
did not bear his signature and that he was aware of Exhibit 3 but did
not reveal the contents of the document and the reason for its
execution. Thus, on consideration of the evidence, it is apparent
that the weight of the documents were definitely not in favour of the
Appellant the contents of the documents or the signatures therein
having remained unproved. In the absence of proof of documents,
the case of the Appellant has no legs to stand.
15. Even if the documentary evidence is to be ignored, it
would be necessary to consider the provisions of Section 16 the
Specific Relief Act, 1963, deals with personal bars to relief and
provides as follows;
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
"16. Personal bars to relief.--Specific
performance of a contract cannot be enforced in favour
of a person--
(a) who has obtained substituted performance
of contract under section 20; or
(b) who has become incapable of performing,
or violates any essential term of, the
contract that on his part remains to be
performed, or acts in fraud of the
contract, or wilfully acts at variance with,
or in subversion of, the relation intended
to be established by the contract; or
(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 must prove performance of,
or readiness and willingness to perform,
the contract according to its true
construction." (emphasis supplied)
(i) This provision therefore mandates readiness and
willingness on the part of the Plaintiff and it is a condition precedent
for obtaining relief of grant of specific performance. In Mrs. Sandhya
Rani Sarkar vs. Smt. Sudha Rani Debi and Others it was held that in
the plaint the Plaintiff must aver that he is ready and willing to
perform his part of the contract from the date of agreement till the
date of institution of the suit.
16. In U. N. Krishnamurthy (Since Deceased) Thr. Lrs. vs. A. M.
Krishnamurthy , the Supreme Court observed that Section 16(c) of
the Specific Relief Act 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 the contract. That,
AIR 1978 SC 537
2022 SCC OnLine SC 840
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
in view explanation (i)(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 essential terms of a contract,
which involves payment of money. While discussing Section 16(c)
of the Specific Relief Act, the Court was of the view that 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 he had
sufficient funds or was in a position to raise funds, in time, to
discharge his obligations 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 financer for disbursement of
adequate funds for timely compliance with the terms and conditions
of a contract involving payment of money. In Man Kaur (Dead) by
LRs. vs. Hartar Singh Sangha , the Supreme Court observed as
follows;
"40. ...............A person who fails to aver and
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
the terms the performance of which has been
prevented or waived by the defendant) is barred from
claiming specific performance. Therefore, even
assuming that the defendant had committed breach, if
the plaintiff fails to aver in the plaint or prove that he
was always ready and willing to perform the essential
terms of contract which are required to be performed
by him (other than the terms the performance of
(2010) 10 SCC 512
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
which has been prevented or waived by the plaintiff),
there is a bar to specific performance in his favour.
Therefore, the assumption of the respondent that
readiness and willingness on the part of the plaintiff is
something which need not be proved, if the plaintiff is
able to establish that the defendant refused to execute
the sale deed and thereby committed breach, is not
correct. Let us give an example. Take a case where
there is a contract for sale for a consideration of Rs. 10
lakhs and earnest money of Rs. 1 lakh was paid and
the vendor wrongly refuses to execute the sale deed
unless the purchaser is ready to pay Rs. 15 lakhs. In
such a case there is a clear breach by the defendant.
But in that case, if the plaintiff did not have the
balance Rs. 9 lakhs (and the money required for stamp
duty and registration) or the capacity to arrange and
pay such money, when the contract had to be
performed, the plaintiff will not be entitled to specific
performance, even if he proves breach by the
defendant, as he was not "ready and willing" to
perform his obligations." (emphasis supplied)
17. The purport and intent of Section 16 of the Specific
Relief Act have been categorically elucidated in the foregoing
decisions. In light of the said exposition of law, what emerges from
the averments and evidence on record is that, as per the Appellant,
on 27-10-2014 an amount of ₹ 2,20,000/- (Rupees two lakhs and
twenty thousand) only, was paid to the Respondent No.1 as advance
for the sale transaction. However, it is the admitted evidence of the
Appellant himself that, on 14-01-2015 he did not hand over any
cash to the Respondent No.1. He claims to have paid installments
to the Respondent's wife whenever she contacted him
telephonically. PW-1 Santosh Subba, could not vouch for payment
of advance money. PW-2 Kaching Lepcha, admitted that, no
advance payment was made in his presence. PW-3 Passang Lepcha,
a boundary holder to the suit property gave no evidence of payment
of advance. PW-4 Bhim Pradhan was categorical in his cross-
examination that he did not witness any transaction of ₹ 2,20,000/-
(Rupees two lakhs and twenty thousand) only, between the
Appellant and the Respondent No.1. The evidence of PW-5 Yadhu
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
Nandan Sharma, the Panchayat vice-president at the time of the
transaction, shed no light on the payment of advance and he was
unaware of the documents prepared between the parties. PW-6
Tirtha Ram Sharma, deposed that transaction of a sum of ₹
2,20,000/- (Rupees two lakhs and twenty thousand) only, took
place between the Appellant and the Respondent No.1. He did not
shed light on who the witnesses were when the money changed
hands. The Respondent No.1 himself testified that no money was
paid to him and that in fact Tirtha Ram Sharma had loaned his wife
a sum of ₹ 2,30,000/- (Rupees two lakhs and thirty thousand) only,
to tide over the financial crisis on account of the education of his
daughter and that neither the consideration value of ₹ 12,00,000/-
(Rupees twelve lakhs) only, between the Appellant and him nor an
agreement for sale was made. Respondents No.1 and 2 denied any
payment made to them by the Appellant. Witness of Respondent
No.1, Kamal Kumari Rai, stated that she did not witness the
Appellant paying any money to the Respondent No.1 when the
documents were executed. Bishnu Maya Rai another witness of
Respondent No.1 gave the exact same evidence as Kamal Kumari
Rai. The wife of Respondent No.1 Reena Lepcha, in her evidence,
set out to spin a yarn regarding the alleged transaction and that
PW-6 (Tirtha Ram Sharma) had actually loaned her money and
taking advantage of the illiteracy of Respondent No.1 had made him
sign the sale deed. Tshering Lhamu Lepcha, the last witness for the
Respondent No.1 failed to throw light on any payment.
18. What ultimately transpires from the evidence of the
witnesses of the parties, is that no money in fact changed hands on
the day of the alleged sale of land. Indeed, I am in agreement with
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
the Learned Senior Counsel for the Appellant that the rules in
Sikkim Registration of Documents Rules, 1930, does not lay down a
requisite for furnishing a no objection certificate obtained from the
family members of the vendor before the registration of a sale deed
document. Notwithstanding the absence of such a rule, it is a
practice that has hardened into a rule. This not being the issue at
hand, it is not necessary to enter into a prolix discussion thereof.
Be that as it may, there is no anomaly regarding the fact that the
interest or possession of the property was also not handed over.
Although the argument was advanced by Learned Senior Counsel
that the property was indeed taken over by the Appellant, no proof
emanated to fortify such a contention.
(i) Thus, in the first instance, money, even earnest money
has evidently not changed hands between the Appellant and the
Respondent No.1 for the alleged sale transaction of land between
them. Even if it is to be assumed that such money did change
hands, the Appellant, as held in U. N. Krishnamurthy (supra), failed to
indicate his willingness or readiness to adhere to his part of the
transaction as he did not show availability of funds with him to make
the payment in terms of the contract, within the period stipulated,
nor did he prove that even if he did not have sufficient funds with
him to discharge his obligations to the contract, he failed to
specifically plead how the funds would be available to him. He did
not aver that he had sufficient funds nor did he prove by evidence
any arrangement with a financer to enable him to disburse the
requisite funds. It concludes thereby that the Appellant has failed to
establish either his willingness or his readiness to pay the amount
Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others
agreed to for the transaction entered between him and the
Respondent No.1.
19. In conclusion in consideration of the foregoing
discussions, with the observations above, the Appeal stands
dismissed and disposed of accordingly.
20. Parties shall bear their own costs.
21. Copy of this Judgment be transmitted forthwith to the
Learned Courts below, along with its records.
( Meenakshi Madan Rai )
Judge
30-05-2024
Approved for reporting : Yes
ds/sdl
