7-/'J?'aas:%. • ^T HIGH COURT OF CHHATTISGARH. BILASPUR DB: Hon'ble I.M. QUDDUSI & Hon'ble PR&8HANT KUMAR MI8HRA, JJ \ ^^ F.A. N0. 98 OF 2009 Dharamchaitd Agrawal Vs. Joravamal Daddha JUDGMEMT For consideration Sd/- 1-M.Quddussi Judge HON'BLE SHRI JUSTICE PRASHANT KUMAR MISHRA. •hanf Kumar Mis Judge Post for / SA/- I.M.Quddusi Judge rfT- -.-i"' "• HIGH COURT OF CHHATriSGARH, BILASPUR DB: HON'BLE I.M. QUDDUSI, & HON'BLE PRASHANT KUMAR MISHRA, JJ, F.A.BO. 98 of 2009 <h Vs. FIRST APPBAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 Appearance: Mr. Ravish Agrawal, Seruor Advocate, wlth Mr. Saajay K. Agrawal, ajud Mr. Saurabh Shanna, couasel for the appeUaat Mr. M. P. Khajauchi, Mr. R. Daga aad Mr. Vinit Kumar Paitdey, counsel for the respondent. JUDGMBNT (Dated ; 2. .05.2011) Per I.M. QUDDUSI, J, 1. This appeal u/s 96 of the Code of Cvnl F'rocedure has been filed against the judginent aud decree dated 31.01.2009 passed by the District Judge, Rajnaadgaon, iu Civil Suit No.6-A/2005 dismissing . the suit Eted for specific perfonuauce of the contract by fhe appeUaiit aad holdiag fhat fhe appeUant is entifled to get refund of the amount advanced by him to fhe icspondent. / 2. Brieffacts offhe case arc as foUows: APPELLANT Dbaraaichand Agrawal, s/o Late Shri Lakshini Narayaa Agrawal, aged about 46 years, R/o Tilak Marg, Lohar Road, Near Puraa^anj Chowk, Rajnandgaon Tah.sU aad District Rajnaiidgaon (C.G). DBFBNDANT Joravamal Daddha, son of Lafe Shri Kaluraxu Daddha, Aged atoout 79 years, R/o Cineina Liae, Rajnaadgaon, Tahsil & District Rajnandgaon (C.G). ^^.^ »-.„ r That fhe appellaat and respondent executed aa agreenient dated 02.08.2004 to seU fhe land bearing Khasra No.239/1 admeasuring 7452 sq. ft., situated at Lalbagh Siadhi Colony, GaU No.l, Rajnaadgaon for a sale consideration ofRs. 24,59,100/- (Rs.330/- per sq. ft.). It was ^reed by the partics therein. that fhe appeUant shaU pay Rs.2 lakhs ou fhe date of agreeraent aad accordiagly Rs.2 lakhs was received by the defendant on fhe date ofagreeinent i.e. 02.08.2004 and tbereafter he shatl pay Rs.5 lakhs wifhia a period of two inonths fhat is upto 01.10.2004 aad fhen the reinainJTig amount shall be received by fhe vendor/respondent froxu the vendee/ appeUaat at the tune of execution of the sale deed and the sale deed shall be executed in the narae of fhe person iadicated by fhe plaiatiff. Further the vendee appellant shatl get fhe sale deed executed in his favour by 30.11.2004 and if he fails to get the same or pay the remaining amount of sale consideration, the whole amouat advauced by fhe vendee shaU stand forfeited aad fhe vendor shaU be Gxe to seU the property to any ofher person and the vendee shaU not object to the sarue aad ifhe objects, the same shaU be treated as nonest. It was also inentioned ia the said agreeinent fhat ia case the vendor avoids to fulfill his part of fhe agreeiuent, it will be open for the vendee to take legal action and before fhe date of registration aay liability of loau or tax would be bome by the vendor.. Accordiag to the terms of ^reement,^ Rs.5 lakhs offered by fhe appeUant froia tune to tuae was accepted by fhe respondent aad fhus.fhe next part of fhe agreeinent to seU i.e., payment of Rs.5 lakhs was fuIEUed by mutual consent. The sale deed was to be executed by 30th Nov. 2004 but fhe same was not done and dispute had arisen and fherefore, fhe appeUant filed the above inentioned suit for speciGc perfonnance of the contract iu which it was aUeged fhat fhe respondent did not tum up on 30.11.2004 that is the <<s:3aas^. ^'^ '^. fG-^?^ h^/ ^ H '•:/ '". .», ^^ date fixed for registration of the sale deed aad also did not show any relevant docuaienta. When the phiTitiff- appeUant contacted the defendant/respondent, he taformed fhat the revenue papers were not available aud the sale deed would be executed only after receiviag the revenue papers and thereafter he provided Xerox copies of fhe inakitenaace Khasra related to fhe suit laad onty on 12.12.2004 which was , obtained by the defendant/respondent fi'om. Nazul Department only on 10.12.2004 and ultimately au iatiination was sent by the plaintiff/appeUant to the respondent through his counsel on 22.12.2004. In reply to the sanie, fhe defendaat had repUed through his counsel that providiug Nazul Patta, Map, Maintenaace Khasra and P-3 etc., was not the responsibilily of the defendaat aad due to non- execution of the sale deed by 30.11.2004, another opportunily was given to get the sale deed executed by 03.1.2005 along-with interest @ 18%. Thereafter the defendant eitliaaced fhe rate of the stiit laiid to Rs.400/- per sq. ft. On 18.01.2005 pubUcation was inade ia ftie local newspaper by the plaintiff/appeUant. In reply to the sarue, the defendaat/respondeut also pubUshed in the Newspaper (Ex.P.13) denying fhe aBegations inade by paper publication. Thereafter on 07.02.2005, the appeUaat gave notice to flie respondent to get the measurement of fhe plot and execute fhe sale deed wittun 15 days. Reply to fhe same was given on behalfoffhe defendaat/respondent on 17.02.2005 (Ex. P-14) denying fhe-aUegation that fhere was any talk regardiag enhancem.ent of the rate of suit land to thp extent of Rs.400/- per sq. ft. However, in good-will the defendant graated last opporttmity to get the sale deed registered by 24.2.2005 on payment of remaiiung amount of sale coasideration wifh iaterest @ 18% per annnm. (iii) Tbat the plaiutiff did not agree and ffled suit for spectfic performauce of fhe conta-act which was Yy ;7 •y \ c\ 'S dismissed vide judginent aad decree dated 31.01.2009. 3. CASE OP THE PLAINTIFP (i) The plaintiffs case is that according to the agreement, the value shatl be pald after uieasiirement offhe land; aU taxes, loaas, dues etc., have to be bome by the defendant before fhe registration of fhe laad and he ' has requested for the ineasurement and availability of the revenue records of fhe disputed laad, ia the absence ofwhich, the sale deed coiild not have been executed, but fhe defendaat has faUed to do so. On 15.10.2004 when paymentofRs.1,00,000/- was naade as advance, he has deniaaded for the docuinents, but ttie defendaut has not produced fhe same. On 10.12.2004, defendant has obtauied copy of Maintenauce Khasi-a etc., fi-om Nazul Department but it was not given to the plainttfF. The defendaut has also uot tried for measiu-ement of fhe laad. Therefore, he has issued notice to this eflFect to the defendaat, but . the defendaut did not do his best. Accordiag to the plaintiff, the defendaat has not perfonaed his part of contract; on 18.01.2005 he has pubUshed a public notice ia the Newspaper, despite fhat the defendaut has not suppUcd fhe copies of the revenue papers; therefore, ftie sale has been delayed aad the defendant by false pretence waats to avoid the sale. (ii) On 3.1.2005 plamtiffhad gone to attend fhe funeral of his near relative at Nagpur froiu -where he has iatunated the defendant vide telegram dated 3.1.2005 fhat he wiU returo on 7.1.2005 from Nagpur and thereafter tatks about the registry wUl be inade. On 7.1.2005 plaintiff retumed fi-oin Nagpur aad went to fhe defendant along-with Suresh Gupta and Shantilal Kothan upon which ftie deferidant said that the sale wiU be inade at fhe rate of Rs.400/- per sq. ft. aad the defendaut is tryiu^ to get niore nioney by tncks. Plaintiff by notice dated 07.2.2005 sent through his \ c\ cozuisel, has E^ain noticed the defendaut to produce fhe docuinents and to xaake measureinents withia 15 days. (iii) Accordiag to the plaiutifi, the defendant has never attended fhe Registrar's Office aad kuowiagly delayed the sale. On 23.02.2005 plaiutiff has received a fabricated notice of caveat presented iu the court and because of fhis the plaintiff has filed the suit. The Tribunal held in para 6 of its judginent that pursuant to fhe notice dated 22.12.2004, defendaat has given telegram to the plainttfiF on '23fl/0,005, thereaftjer on 18.1.2005 plainttff has given a public nodce aad on 09.02.2005 defendant has published its reply and on 17.2.2005 defendaut's notice and on 20.04.2005 the iiiforination of the caveat filed by the defendaat ia the Coiut which gave rise to fhe cause Qf action. Hence, the plaiutiff prayed for a decree for specific perfonnaace of the agreeinent m. favour of the plauatiff aud against the defendaiit. 4. CASE OF THE DEFENDANT: (i) The defeudant has contended that the tune lirnit for performaace of fhe agreeiaent was upto 30.11.2004, by which, the balaace amoiint of sale consideration was to be paid by the plaintifF aad fhe conditions of fhe agreeiaent was not faI&Ued by the plainttff himself. He has deiued that there was any condition for production ofthe revenue papcrs. The plaintiffperused the records ofthe land ia question; verified the laad by visiting the site aad coUected all fhe information before fhe agreeiaent and. only on satisfyiag himself fhe s^reeiaent was entered into. The defendaat's coutention is that the plaintiflPs deinand for revenue documents is a part of diUy dallyiug tactics for lapsing the tiine. There were no dues, loaa or tax outstaading agatast fhe disputed property and no conditions were stipulated ia theagreeiueut to fhis efiect. v (ii) The defendant further conteuds that tiU 30.11.2004 he waited for the plamtiff but he did not pay the reiuamiag amount of sale consideration. However, while replyiag to ftie plaintifFs notice, ia good faith, he had extended time tOl 03.01.2005 for executmg the sale deed. The plaintifF was also iufomied to inake ineasureuient of the plot. However, the plainfiff has not tumed up tiU 03.01.2005 to execute fhe sale deed. , The defendant has himself waited ia fhe Registration OfB.ee for the plaintifFbut he did not appear. (iii) The defendant speci&caUy deiued that the plamtiff has appeared before the defendant aloag-with Suresh Gupta and Shaatilal Kothari and further denied fhat he has demanded Rs.400/- per sq. ft. However, on good faith the defendaat has again extended tmie tUl 24.02.2005, but the plaintiff has aot paid the reinaming ainount. On 24.02.2005, the defendaat was present in the Registear's Office, but fhe plafaitiff did not appear. On 22.2.2005 the plnmtiff has filed aa application in. the Nazul OfBce for fhe documents. He could have obtained fhe copies on 23.02.2005 or 24.02.2005, but the p]aintifl" kaowiagly did not oblain fhe documents. The agreeinent has becoine itivalid because tiU 24.02.2005 fhe plaiatifiF failed to execute the sale deed on payinent of the reinaming amount. 5. • The leanied trial Coiirt has held fhat it is not proved that fhe defendant has failed to perfomi the agreeinent to sell dated 02.08.2004 in favour ofthe plaintiffand ttme was essence of the contract/agreement dated 02.08.2004, which was executed between the parties. It has further held that fhe plaiattff has not paid the amount wittun the stipulated period and it K not proved fhat fhe plaintiffwas ever ready to ' execute fhe conditions offhe agreement. V 6. Regardiug presence of the plaiuttff ia Registrar's Office, the Tnbunal has held vide Para 25 that on fhe basis of the documents along-with fh.e afEdavit of fhe p]aiutiff au.d the evidence offhe defendant, it is clear fhat fhe plaintiffdid not examiae any one to prove his presence in fhe Registrar^s Office. Even fhe document writer Haiaant Sahu who is said to have been iafonned to attend the Registrar's Office for registration of fhe sale deed was not exaouned. Plaintiff has admitted fhat the defendaat has given him tixue tffl 03.01.2005 to get the sale deed executed. The defendant was never iafonned by fhe plauitiff that he wiU reach the Registrar's Office with money on 30.11.2004 or 24.02.2005. Regardiag fhe presence of fhe defendant in the Registrar's Office, it has been further observed by the trial Court in Para 30 that fhe defendaat was present on 03.01.2005 aud 24.02.2005 aad receipts of presence iu fhe iiam.e of defendaat was prepared by K.K. Agrawal, Clerk of fhe Registrar's Office, Rajnaudgaon. 7. Regardiag tune was essence of the contract, fhe Tribunal has held vide Para 26 fhat Plamtiff has adiuitted that on 30.11.2004 or 24.02.2005, he dvl not appear before the Registrar's Of&ce. In view of these facts, it is clear that time was the essence of the disputed contract and it was valid tiU 30.11.2004 and by subsequent notice it was deeined to be extended tiU 24.02.2005. Thus it is proved that tune was fhe essence ofthe contract. 8.' Under fhe provisions ofSection 16 offhe Specific ReIiefAct -aay person as a seUer (vendor) agrces to seU his property, the !,4/^. fi-C^ '<K ^e-/'/ '^ '^(^•y' plaintiff vendee caa vertfy as to whether the property is suitable for him or not, but if fhe vendee plaintiff does not couiply with the conditions, iu fhat situation fhe vendor (seUer) is not responsible for it. 9. In fhe agreement, fliere is niention of fhe description of the property. The property is surrounded by boundary waUs on all sides providiag a gate. The area of fhe property has been clearly nientioned aad the same ineasureinent has been mentioned ia the maintenaace Khasra Ex. P.10 also. But certaLaly, there is only sonie difFerence ia the part of the Khasra Nusaber. But inerely on this grouad refasal by fhe plauitiff does not appear to be natural. At the time of agreeiaent plaintiff has iaspected fhe plot and after satisfaction fh.e agreeiaent has been inade but after receiving the documents, plamtiff did not make any effort to execute the registiy. 10. For specific performaace of the contract, it has to be proved fhat fhere was sufficient luoney wifh the plaiatiff. On the point of sufficient inoney ia hand, the plaintiff has stated fhat the Cheque was taken froin his fi-iend Parag Boddun, who is his family fi-iend. The defendaut has cleariy stated fhat fhere was no agreement between him and Parag Boddun. In the Court, fhe plamtiff has stated about availabUity of amouiit fhat he laauitams regular accouats 'and fhe nioney tran.sactions are written iu his diary. This witn^ess has not produced aay document of proof about the avaUability of fund and he has admitted ftiat the aniounts taken frora his friends have been written ia the diary, but ,;"L ;i '^ <-•.- rv' '& the diaiy has also not been produced. He has stated about the friends froin whoin nioney has to be received but did not examine fhem ia court. Even his wife, fi-om whoni cash was said to be taken, was also not examiued. In this sitaation, the fact fhat plaintiffwas possessiag enough inoney does not appear to be plausible. 11. Before proceeding fdrther it is necessaiy to peruse fhe provisions of section 16 of the Speci&c Relief Act, which are quoted as under: 16. Personal bars to relief.—Speci&c performance of a contract canaot be enforced iu favour of a person— (a) who would not be entitled to recover coinpensation for its breach; or (b) who has becoiue incapable of perfonuirig, or violates auy essential tema of, the coutract fhat on his part reinains to be performed, or acts in fi-aud ofthe contract, or wiUfuUy acts at vanance with, or ia subversion of, the relation iutended to be estabUshed by ffae coatract; or (c) who faUs to aver aud prove fhat he has performed or has always been ready and witting to perfonn the essential teruis of fhe contract which are to be perfonned by him, other thaa terms the performan.ee of which has been prevented or waived by the defendant. t Bxplanation.— For the purposes ofclause (c),— (i) where a contract iavolves the paynient of inoney, it is not essential for the plaiatiff to actuaUy tender to the defendant or to 10 evA 12. deposit in court aay money except when so directed by fhe court; (ii) The plamtiff must aver performance of, or readiuess aad witlmgness to perform, the contract accordiug to its true construction. A perusal of fhe above provisions would show fhat Section 16(c) of the Specific ReUef Act 1963 bars fhe speci&c performance ofa contract in favour ofa plaiatiffwho fails to aver aad prove fhat he has perform.ed or has always been ready aad wiUiag to perform the essential terms of the contract which are to be performed by Tiim (ofher fhan tenns of ttie perfonuance ofwhich has been prevented orwaived by fhe defendaat). Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, the plaintiff must aver perfonnaace of, or readiacss and wiUiagness to pcrfonn, the contract accordrag to its true construction. Thus iu a suit for speci&c performance, the plaintiflF should not only plead aud prove fhe tenns of ttie agreeiaent, but should also plead and prove his readiuess aad wUlmgness to perform his obUgations under fhe contract ia terms offhe coutract. Therefore, befbre raisiag any issue, the inain question for detennuiation in fhe instant case would be regardiag eii.forcenieut of specific piprforcuance of contract. To prove that that plaiiitiffwas ready aud wiUiag to perfonn his part df the contract, he had to show that he was haviag sufficient funds available to get the sale deed executed as without payment of reinaixung amount of sale consideration, fhere was no question of execution of ftie sale deed. In the iustant S SB Ift' ^^Q.. '^ f? ^-^y-^ 11 v^ 11 ,».» case there were necessaiy averments iu the plauit about fhe readiaess and wiUingpess of the plaintiff, but there was no acceptable or valid evidence of such readiaess and witliuguess of the plaiatiff to perfonn his part of the obUgations iu tenns of the contract as the plaiatiffwas not able to pay the reinauinig sale consideration of Rs. 17,59,100/- plus registration charges ete. 13. In fhe agreeiaent to seU, it was ^reed upon by fhe parties fhat the appeUant/plamtiff shaU get fhe sale deed executed by 30th Noveinber, 2004. Accordiag to his own aUegations inade in fhe plamt as weU as the evidence led by the plainttff fhat he appeared ia the Registrar's of5ce on 30.11.2004 or on 24.02.2005, but he did notappear. The first thmg is that tf he appeared in the Office of Registrar he should have proved fhat he appeared ia Registrar's Office with the remamiag amount of sale consideration ia fonn of Cheque, Deinand Draft or ia cash. Nothing has coine on iccoid ia fhis regard. 14. Hon'ble fhe Supreme Court in Jnderchcuid Jkdn (Dead) through L.Rs. Vs. SSotilal (Dead) through I,.Rs. reported in. (2009) 14 SCC 663 has held that section 16(c) of the Specific Relief Act, 1963 maadates that the' discretionary reUef of specific perfomiauce of fhe contract caa be granted only iu fhe event the plaintiff not only inake necessary pleadiags but also estabUshes fhat he had aU along been ready and wiUing to perfonn his part of fhe contract Such readiaess and wiUingaess on fhe part of fhe plaintiff is not confined only to the stage of filing of the plaiat but also at the subsequent stage viz. at the hearing. In fhe said case 12 0!^ 1S. fv vide Para 15, the Apex Court quotcd the lawlaid downfaite earliea- decisioa in CSSK of Umaftut V. iWUMUtUi .IMiemMba Cha«»an,rej*w*ed <n (300^ 6 SCX! 343 in the fbBowiag tenns : (SCC P. 256 Paras 30-31). "30. It is now weBLsettiKl lliai fhe coadart of the parties, trith a view to arrive at a finding as to whether thc plaintiff-respoiidents were aB dong aiid stiU are ready and williag to peEfoi'na (heir part of contcact as is maadatorify required uader Section 16(c) of the Specific Rclief Act laust be detetnuned having regaid to fhe entfre attisodm^ cscasastsavsea. A bare avcrment in fhe plalnt or stateincnt aiade in Ihe exainination-ai-chief would aot sufBoe. The conduet of fhe plaiatiff-resptadente inust be judged having regaid to fte Nitirety of thc pleadiags as also fhe evideaces bxou^ri: oa iccord. 31. Ia tenas of FOEIBS 47 & 48 aqppendcd to Appenduc A oftfae Gode ofCivfl Plocedure, fhe pteintiff aaust ptead tfaat <he has been and stfll is ready aad wiUing spedficalty to pexform. fhe agieement <»Us part of-wfaacli the defendant has had notiee'w the plamtifiFis stttl ready and wiBingto pay fhe pu»ehase moaqf offhe said property to Itoe drieadaaf. The ottw of fhe plaintiffm thf iastmit case as a coadlttDnal <me aad, fhus, does iiot fuffl ttie requu-eneatsoflaw.' Wifh regard to the question as to whefher ttie tinae wiB be essence offhe CMitoact, Hon'bte fhe SupEuneCourt in A B. Aafcshwdptrt)^ (Stea^ €MM| ofliw —»»• Itat Strtwh nuuMttaI S. X<»lwUGh€irOaW<ayarf euwl Mhiws, ^fftl^ 1 SCC 287 has heM iapaia 23 as under: "In our view tlie High Court haangbt^ pototed out fhat fhere are maiy mstaaees m fhe saad contract where fte fect that time is to be of essence of thc contract has been specificalty mentioned. GIause 10 of fhe agreciaent for sale which reads 'Timewrill be i^'the 13 esserwe of Ihe oonfriacC, therefiac, has been clearfy mentuiaed in the s^feement fi»r aale. However, it is weU a setUed pix>position of tew by now that tiaae is not to be of the essence in case of sate of iatmoiveabte property*. In ChcindRam Vs. Kecmcd Ram(1993) 1 SCC 519, •Qus Court clearfy Ii.eld that iu the case of sale of muaovable property, fhere is ao iwesuiaption^ ^ to time bemg fhe esscace ofthe contttaet" 16. Hexc in the present case, thn plninHff hnn fiaibxt tn cstnhliah that he had coxne to fhe Registrar's Office for eaeecutiug Vae sale deed oa 30.11.2004 or oa 24.2.2005 along-with ZGsasaaiBy part of fhe sale coiisidetation that is Rs. 17,59,100/- aad Begistratton charges. It shoms that the petitioner w^ aot having sufficient funds to easecute &e sale deed. Therefore, ia our opuuon, fhe specific pcrfoxaiaace of fhe coatract cannot be eiiforced in favour of the plaintifF'in view ofsection 16(c) aad Bxplanation (i^ thereof. 17. Ia view ofwhat has been stated above, wc do aot fiaAitt a fit case wananting iaterfercnce in Ae impugnedJudgmeat and decicedated 31.1.2009 passed by flie Gourt bctow. laicre&ic, the appedfafls aad is disaadssed. Nooxderas to cost(s). Sd/- I.M.Quddussi Judge Sd./- Prasfaant Kumar Mi; Judge Rao