FIRST APPEAL No.581 of 1999 Against the Judgment and Decree dated 30.08.1999 passed by Sri Manoranjan Prasad Srivastava, Sub Judge- IV, Patna in Title Suit No.296 of 1996 / 20 of 1998. ------ SMT. MADHU VERMA ------------------Plaintiff-Appellant Versus SMT. URMILA DEVI & ANR. --------------Defendants-respondents For the Appellant : Mr. Shivnandan Prasad Singh, Advocate Mr. Ashoka Kumar, Advocate Mr. Manoj Kumar, Advocate For the Respondent No.1 : None For the Respondent No.2 : Mr. Ashok Kumar Jha, Advocate Mr. Ranjan Kumar Jha, Advocate Dated : 4th day of August, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- J U D G M E N T Mungeshwar Sahoo, J. The plaintiff-appellant has filed this First Appeal against the Judgment and Decree dated 30.08.1999 passed by the learned Sub Judge-IV Patna in Title Suit No.296 of 1996 / 20 of 1998 whereby the learned Court below refused to grant the decree for specific performance of contract and granted the alternative relief holding that the plaintiff is entitled for the alternative relief. (2) According to the plaintiff case, the plaintiff and the defendant No.1 entered into an agreement to sell dated 30.03.1996 for consideration of Rs.7.5 lakhs on the agreed terms incorporated in the agreement of sale. The defendant also received a sum of Rs.51,000/- as earnest money which 2 was to be adjusted in the total consideration amount. The further case is that the defendant had agreed to produce original gift deed dated 10.06.1982 by which the defendant had acquired title but inspite of repeated request by the plaintiff, the defendant did not produce the original gift deed and so the sale deed could not be executed due to failure of the defendant. Although, the plaintiff has always been repeatedly approaching the defendant. The further case is that the plaintiff has further paid rupees one lakh on 20.04.1996, Rs.95,000 on 11.05.1996 and Rs.5000/- on 12.05.1996, the total being 2,51,000/- including the earnest money. 30.06.1996 was the date fixed for execution and registration of the sale deed. (3) The further case is that because of non-production of the original gift deed doubt was created so the plaintiff served the legal notice on 04.05.1996 requesting the defendant to comply the mutually agreed terms and to execute the sale deed but the defendant replied on 24.06.1996 with wrong and misleading statement. The plaintiff was always and is still ready to pay the balance consideration amount and get the sale deed executed. The defendant No.2 was knowing about the agreement dated 30.03.1996 but the defendant No.1 executed and registered a sale deed in favour of defendant No.2. The plaintiff making the above averments prayed for specific performance of contract and in the alternative prayed for a decree for recovery of Rs.2,51,000/- along with compensation. (4) The defendant No.1 filed contesting written statement. She admitted to have received the amount as alleged by the plaintiff, i.e., Rs.2,51,000/-. According to the defendant No.1, the plaintiff was shown 3 the photocopy of gift deed before execution of agreement and on being satisfied about the title of the defendant No.1, she entered into the agreement dated 30.03.1996. There was no terms and conditions in the agreement that the defendant No.1 should hand over the gift deed in original to the plaintiff but the plaintiff always insisted for handing over the original gift deed. In fact it was agreed upon between the parties that the gift deed will be handed over at the time of execution and registration of the sale deed. The defendant also sent the draft of the proposed sale deed in April, 1996 and a legal notice was sent on 24.06.1996 requesting the plaintiff to pay balance consideration before 30.06.1996 and get the sale deed executed within stipulated time failing which the amount of earnest money shall be forfeited but the plaintiff neither paid the balance consideration nor got the sale deed executed. The plaintiff was never ready and willing to pay the balance consideration amount and get the sale deed executed and registered. (5) The defendant No.2 also appeared and filed contesting written statement alleging that she had no knowledge about the agreement between the parties. She is a bona fide purchaser without the knowledge of previous agreement. It is also alleged that after purchase her name has been mutated. The defendant No.2 is also paying rent to the State of Bihar against the grant of rent receipt. (6) On the basis of these pleadings of the parties, the learned Court below framed as many as 9 issues. Out of said issues, the main issue is Issue No.6, i.e., Is the plaintiff entitled to get a decree for specific performance of the contract as claimed in the plaint. While deciding this issue. The learned Court below after considering the oral and 4 documentary evidences, came to the conclusion that the defendant No.1 was ready to execute the sale deed before time fixed, i.e., 30.06.1996 after receiving entire balance consideration money even though the plaintiff did not adhere to the time schedule given in the deed of agreement for sale for part payment and accordingly in the opinion of the learned Sub Judge, the plaintiff is not entitled to get a decree for specific performance of the contract for sale as claimed by her. So far defendant No.2 is concerned, the learned Court below found hat since the plaintiff is not entitled for the relief for specific performance of the contract for sale against defendant No.1, defendant No.2 acquired absolute right title and interest over the suit land. On these findings, the learned Court below refused to grant the main relief. Since the defendant No.1 had admitted to have received Rs.2,51,000/-, the learned court below granted the alternative relief. (7) The learned counsel for the plaintiff-appellant submitted that the finding of the learned Court below is wrong and based on no evidence. The learned counsel further submitted that the plaintiff was always ready and willing to perform his part of the contracts. The plaintiff was only demanding the original gift deed to verify the title of the plaintiff because being the purchaser, it was his duty to verify the same before investing such a huge amounts. The learned counsel further submitted that the plaintiff was always keeping with her the balance consideration amount and was always ready and is still ready to perform her part of the contract, i.e., to pay the balance consideration and get the sale deed executed and registered but the defendant is avoiding. On the basis of all these grounds, the learned counsel submitted that the plaintiff-appellant is 5 entitled for the grant of specific performance of the contract dated 30.03.1996. (8) In spite of service of notice, the defendant No.1 did not appear. The learned counsel for the defendant-respondent No.2 submitted that she is bona fide purchasers without knowledge of the agreement. (9) In view of the above contentions of the parties, the points arises for consideration in this Appeal is as to whether the plaintiff was always ready and is still ready and willing to perform her part of the contract and whether she is entitled for the main relief of specific performance of the contract dated 30.06.1996, Exhibit-‘6’. F I N D I N G S (10) In this case from perusal of paragraph 13 (a) of the plaint, it appears that the defendant No.2 is purchaser from the defendant No.1 during the pendency of the suit. This fact is not disputed. Therefore, she is a purchaser pendente lite. (11) In this case certain facts are admitted. It is admitted by the parties that they entered into an agreement for sale on 30.03.1996. Consideration of RS.7.5 lakhs is also admitted. The deed for execution and registration of the sale deed was fixed for 30.06.1996. The defendant No.1 also admitted to have received earnest money of Rs.51,000/- at the time of execution of the agreement for sale and also admitted that subsequently she received Rs. 2 lakhs from the plaintiff. The case of the plaintiff is that there was agreement between the parties that before execution and registration of the sale deed, the defendant No.1 will hand over the original gift deed to the plaintiff and, therefore, the plaintiff always demanded the defendant to hand over the gift deed but the 6 defendant did not hand over the gift deed. The learned counsel for the appellant submitted that because the plaintiff was purchaser on payment of huge amount of Rs.7.5 lakhs, it was natural conduct of the plaintiff to have the possession of title deed. The learned counsel further submitted that the plaintiff was always ready and willing to pay the balance consideration amount but the defendant always avoided to hand over the original gift deed dated 10.06.1982 and, therefore, the defendant failed to perform her part of the contract. Now, let us examine the evidence of this point. From perusal of the deed of agreement to sell dated 30.03.1996, Exhibit ‘6’, it is clear that there is no such stipulation that the plaintiff will hand over the original deed of gift before execution and registration of the sale deed. In the body of Exhibit ‘6’, it is mentioned that the defendant No.1 acquired title over the suit property through gift deed dated 10.06.1982. P.W.4, the plaintiff, Madhubala Verma, in her evidence at paragraph 5 has clearly admitted that the photocopy of the gift deed was given to her at the time of negotiation. At paragraph 3, she has stated that she was demanding the original gift deed but the defendant did not give the said gift deed. In the cross-examination at paragraph 5, she has clearly stated that she had told that if the original gift deed is not given then she will not purchase the lands. From perusal of Exhibit ‘A/1’, which is legal notice dated 24.06.1996 sent on behalf of the defendant No.1 to the plaintiff, it appears that the defendant No.1 narrating the circumstances requested the plaintiff to pay the balance consideration of Rs.5 lakhs before 30.06.1996 and get the proposed sale deed executed. It may be mentioned here that the last date for execution and registration was 30.06.1996. The plaintiff admits to have received this legal notice 7 dated 24.06.1996 prior to 30.06.1996 and gave reply through Exhibit ‘1/a’. This reply of legal notice is dated 29.06.1996 sent on behalf of the plaintiff through her Advocate to the defendant No.1, Smt. Urmila Devi. At paragraph 3, it is mentioned as follows : “That you agreed to hand over the original gift deed to my clientess in respect of the property agreed to be sold to my clientees before execution of the sale deed but up till now the original gift deed dated 10.09.1982 has not been shown to my clienteess by you. My clientess has learnet tht you have borrowed money and has given up the original gift deed in security to Sri Ramesh Singh of Magistrte Colony, Asiana Nagar, Patna. My clientess has always been requesting you to bring the original gift deed but you have failed till now to bring the original gift deed and to show the same to my clientess.” (12) In view of the above evidences and stipulation in the legal notice, it appears that till at least 30.06.1996, the plaintiff was not ready to perform her part of the contract and she was emphasizing for handing over the original gift deed. According to her as stated in the evidence unless the original gift deed is handed over to her, she had told the defendant that she will not purchase the property under contract. The learned counsel for the appellant submitted that time was not the essence of the contract because it is sale regarding the immovable property. In support of his contention, the learned counsel relied upon A.I.R. 1977 (S.C.) 1005 (Govind Prasad Chaturvedi Vs. Haridutt Shashtri) and A.I.R. 1988 (S.C.) 1074 (Smt. Indira Kaur Vs. Sri Shivlal Kapur). (13) In Govind Prasad Chaturvedi Vs. Haridutt Shastri (Supra), the Hon’ble Supreme Court has held at page 1007-1008 as follows : “It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sell of immovable property, it will normally be presumed that the time is not the essence of the contract. (Vide Gomalthinayagam Pillai v. Pallaniswami Nadar, (1967) 1 SCR 227, 233) : (AIR 1967 SC 868 at p. 8 871). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidences by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.” (14) In the case of Indira Kaur Vs. Sri Shivlal Kapur at paragraph 6, the Hon’ble Supreme Court has held as under : “The law is well settled that in transaction of sale of immovable properties, time is not the essence of the contract.” (15) In view of the said decisions of the Hon’ble Supreme Court, no doubt, in the transaction of sale of immovable properties, time is not the essence of the contract but on that ground alone the plaintiff is not entitled for a decree for specific performance of contract unless the plaintiff proves the continuous readiness and willingness to perform her part of the contract. (16) In the case of Babu Bindeshwari Prasad Vs. Mahant Jayram Gir reported in Vol.14 Indian Appeals, it has been held that a guarantee of title by defendant had never been within contemplation of the parties. Consequently, no case was made for exercising the discretionary power of the Court to grant specific relief under Act (1) of 1877. It appears that in that case, the agreement was entered into between the parties on 03.10.1982 for a consideration of Rs.10,075/-. Rs.200/- was received as earnest money. Rs.9,875/- was to be paid within 15 days. It was also stipulated that if it is not paid within 15 days, the earnest money will be forfeited. It further appears that a draft sale deed was sent by the plaintiff requiring the defendant to give as an absolute warrantee of title and the plaintiff insisted upon the same. The trial Court dismissed the suit holding 9 that the plaintiff had not paid the purchase money at the time fixed and no valid excuse had been shown for his not doing so. On Appeal before the High Court also, the plaintiff insisted for execution of conveyance with a warrantee of good title. The Hon’ble High Court dismissed the appeal and then against the Judgment of the Hon’ble High Court, the plaintiffs preferred the appeal before Judicial Committee and their Lordship advised her Majesty to dismiss the Appeal. In the present case also although on being satisfied after seeing the photo copy of the gift deed, the plaintiff entered into the agreement for sale but subsequently a condition was put by her that unless the original gift deed is given, she will not pay the balance consideration amount and, therefore, she insisted guarantee of title. (17) In A.I.R. 1993 (S.C.) 1742, the Hon’ble Supreme Court at paragraph 16 has held as follows : “From the materials available in this case, it is clear that the plaintiff was never ready and willing. No doubt, on 10.09.1971, a notice was issued to the defendant that the first plaintiff had ready money with her for the purchase of property. It was also followed by a telegram. However, that was replied to calling upon the plaintiff to pay a sum of Rs.98,000/- which should have been paid on or before 26.08.1971. This stand was reiterated by reply notice dated 16.09.73. Strangely, the plaintiff would insist upon the vacant possession of the first floor by 30th of September, 1971. Only on such delivery of possession and payment of taxes, the plaintiff was prepared to part with the consideration of Rs.98,000/-. Therefore, it would be clear from the notice of the plaintiff dated 24.09.1971 excepting mere assertion of readiness and willingness, it was not followed by conduct. The idea of the plaintiff seems to be to obtain delivery of possession. As has been rightly held by the Division Bench that where a counter term stipulated which was not supported by the suit contract, certainly the suit contract will stand vitiated. Thus it is submitted that no case is made out for interference.” (18) In view of the aforesaid law laid down by the Hon’ble 10 Supreme Court, mere assertion of readiness and willingness in the plaint or in the evidence or in the legal notice is not sufficient to prove readiness and willingness. The said assertion must be followed by conduct of the plaintiff. In the present case although by the notice dated 24.06.1996, the defendant No.1 called upon the plaintiff to deposit the money and get the sale deed executed before 30.06.1996 but instead of paying the consideration money for obtaining sale deed, the plaintiff replied on 29.06.1996 demanding the original gift deed. In the evidences as discussed above, she specifically stated that unless gift deed in original is given to her, she will not purchase the property. All these evidences shows the conduct of the plaintiff that the plaintiff was putting a counter term which was not mentioned in the contract, Exhibit ‘6’, and was insisting for handing over the gift deed. Therefore, during this period, the plaintiff was not ready and willing to perform her part of the contract by paying the balance consideration amount to the defendant. On the contrary, the defendant as stated above by Exhibit ‘A/1’ requested the plaintiff to pay the balance consideration and get the sale deed executed and registered. (19) In view of the above discussion of the documentary evidences coupled with evidences of plaintiff herself and the law laid down by the Hon’ble Supreme Court, the other oral evidences are not necessary to be gone into in detail. In view of my above discussion, I find that although time was not the essence of the contract for sale of immovable property, the plaintiff was not always ready and willing to perform her part of the contract, i.e., she was not ready and willing to pay the balance considerati0n amount till the original gift deed is handed over to her. In 11 my opinion, therefore, no case is made for exercising the discretionary power of the Court to grant specific relief in favour of the plaintiff. The finding of the learned Court below on these points are, therefore, confirmed. (20) So far sale by the defendant No.1 in favour of defendant No.2 is concerned, the legality or otherwise of the same is not required to be gone into because it has been found above that the plaintiff is not entitled for a decree for specific performance of contract of sale, Exhibit ‘6’. The finding of the learned Court below on these point is also, therefore, confirmed. (21) In the result, I find no merit in this First Appeal and accordingly this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. Patna High Court, Patna Dated 4 th,August, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)