•^i •'''^/^•-^•^.^:A/^-'-\^V^.'^ ^^.^•^\*r<- BEFORE THE HQN'BLE HIGI-t COUR'r OF CHHATH ATBILASPIJR F.A.N0.3% /2007 AFPELLANT ^•(AINTIFF l.p'- tss*..- ..j^-3'i;^ k5^ GhahsiramLaItEcre S/0 Hagruraiit Lahare,, Aged abcmt 62 years - Through ite Power bf Attomey Holder Rarnesh Kumar, S/o Gharisi Ram tahflre, Aged about 41 years R/o Guru Ghasidas Chowk, Jotlhapur, Dhamtari, Tahsfl and District - DKamtari (C.G.) VERSUS SESPQNDBNTS DEFENDANTS r-"'^ .<J Madhav Das Tandan, S/Q Bhaiyaraiii Tandan, Aged sihcwt 4:t years, R/o Guru Ghasidas Chdwk, Jodhapur, Dhamtari, Tahsil and District - '?• ^ Dhaintari(C,G.) ^ ^!s^vu' ^2< State of GhKatysgarh, Through O' ^ ^£> rT<-*1l<a^1-nr ni^iaml-an niieil-rirf- - the Collectpr Dhamtari, District - Dtiamtari(C,G.) FIRST APPEAL UNDERSEeTIQlSF960FTHECODEOF CIVILPROCEDURE •s •«s 'Es '^ ^':Mi~^"W'L?lls^^l^te?;s"s*s^:;i^:i ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT FIRST APPEAL No. 98 OF 2007 Ghansiram Lahare RESPONDENTS Versus Madhav Das Tandan and another ORDER HON'BLE SHRU.M. QUDDUSI, J 3 a^A^fefe Sd/- I.M.Q«ddusi Judge For consideration Sd7- J -5-20TT Postfor: , -5-2011 Sd/- N.K. Agrawal Judge Y ^ HIGH COURT OF CHHATTISt.rARH AT BILASPUR PIRST APPEAL No. 98 OF 2007 APPELLANT RESPONDENTS Ghansiram Lahre Versus Madhav Das Tandan and another DB:- HON'BLE SHRI I.M. QUDDUSI AND HON'BLE SHRI N.K. AGARWAL. J PRESENT:- Shri B.P. Sharma, Advocate, for the appeUant. Shri A.N. Bhakta, Advocate for the respondent No. 1. Shri Vinay Harit, Dy. Adv. General for fhe State. ORDER [S -5-2011) PER N.K. AGARWAL, J 1. This is defendant's lirst appeal under Section 96 of Code of Civfl Procedure against the judgment and decree dated 26-7-2007 passed in CivU Suit No. 18-A/2006. 2. Facts of fhe case in brief are as under:- i. On 25-9-2001 agreement of sale (Ex. P-l$ was executed between plaintiff/appeUant and defendant No. 1 wifh respect to 1.65 acres ofland for a sale consideration ofRs. 7,25,000/-. Rs. 2,65,000/- was paid by the plaintiff as eamest money on various dates. Balance consideration amouiit was made payable between Dashahara and Diwali, 2001. Agreenient shows revenue papers i.e. Bhu- adhIkar-Rin Pustika and Khasra were handed over by defendant No. 1 to plainttff. ii. By sending various notices plainttff asked defendant No. 1 for execufion of sale deed m terms ,of-the agreement. On defendant's failure, plaintiff filed instant suit for specific performance ofcontract. iii. Defendant No. 1 opposed fhe suit, denied execution of agreement of sale in plaiattfifs favour with regard to (f32^, \ "•^1. '• IV. 3. 1. u. 111. \ ^ property described tn the plaint map. According to defendant, agreement ofsale (Ex. P-1) was executed in fact bettpeen Ramesh Lahre who is a Patwari and son of fhe plainttff and defendant, who has not paid balance consideration amount in time and fherefore, is not entitled for fhe relief of spectflc performance of contract. Leamed trial Court on the basis of evidence led material placed and submissions made, rejected plaintUFs prayer for specific performance of contract, granted decree for refund of eamest amount with interest at the rate of 9% froia 25-9-2001 findmg inter alia: plainfiff entered into agreement of sale with (he defendant No. 1 for a sale consideration of Rs. 7,25,000/-, paid Rs. 2,65,000/- as earnest money, possession of the suit land was not transferred, plaJntiff failed to aver and prove his readiness aad wUlingness to perfonn his part of contract within fhe ttme specified. Shri B.P. Sharma, learned counsel for the appeUant woidd argue, leamed trial Court has grossfy erred in dismissmj platatiffs suit so far as relief of spedfic perfonnance of contract inter alia on the followiag ground: It is weU accepted principlc that in the case of sale of iinmovable property, time is never regarded as essence of conta-act, in fact there is a presumption against time being essence of contract; Leamed trial Court has grossly erred in holding, plalntiiB' failed to aver and prove that he has performed or has always been ready and wUluig to perfoi-m essential terms of Che contract, which are to be peifonned by him; Unwiilingness to perform his part of tfae agyeement by defendant No. 1 in view of rise tn price of property is not a ground for refusal to enforce the lawful agreeiaent of sale; ^s^ \ iv. The basic prindple behind Section 16(c) read wifh explanation (ii) offhe Speclfic Reliefs Act, 1963 is that any person seeking benefit of fhe specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific reUef. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings mantfest fhat the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. v. Plalntiff is ready and wiUing to pay Rs. 10,00,000/- instead of Rs. 7,25,OOO/- as agreed between the parties lookmg to rise in price ofproperty. 4. On fhe other hand, Shri A.N. Bhakta, leamed counsel appearing for the defendant No. 1 would support fhc judgment and decree and would submit, plaintiff did not enter uito witaess box; utteriy failed to aver and prove his readmess and wUliagness to perform his part of contract in terms of Section 16(c) of the SpectBc Reliefs Act, 1963 (for short, the Act); is tnsisting for execution of sale deed wifh regard to spectfic khasra number mentioned tn the plaint map in violation of terms of the agreement, failed to pay balance consideration amount witihin fhe time stipulated; insisted only for execution of registered sale deed without paytng balance consideration in terms of contract, also insisted for demarcation of the land in violation of the agreeiaent and leamed trial Court has righUy rejected plaintiirs prayer for spedfic performance of contract. 5. We have heard leamed counsel for the parties and perused fhe record of leamed Court below. 6. Balance amount of consideration was not paid by the plaintiff in terms of agreement of sale (Ex. P-1) i.e. |REr-: 3N f 'aaas°;li3» f .3- 7. between Dashahara and Diwali , 2001; as per Para 22 of the statement of Rainesh Lahre (Ex. P-1) amount of carnest money was pald by him. He further deposed in para 24 of his statement, his father only can explatn how he arranged aniormt of eamest money; his fafher was worldng as Rajmistri before 4-5 years. Admittedly, speciflc property described in fhe plaint niap was not agreed to be sold by fhe platntiff, there is also no condition in the agreement for payment of balance consideration aniount at the tune of execution of sale deed and requirement of demarcation of land before execution of sale deed. Plaintiff neither paid the balance consideration amount as per fhe agreement nor shown his intention for payment of consideration at any point of time, on the other hand, in violation of terms of agreement, he always msisted upon execution of sale deed of the land situated in front of JodhapLU- School. Further from a bare perusal of the pleading it would be clear, averment with regard to readiness and wUlingness is not inconformity wifh the provisions contained in Section 16(c) of fhe Speci&c Reliefs Act. Statement of P.W. 1 Ramesh Lahre shows, plaintiff is not person of means, also not entered into witness box, Ramesh Lattre himself is not aware how his father has paid eamest money, therefore plaintifif's readiness carmot be proved by P.W. 1 Ramesh Lahre. The Supreme Court m case of Chand Rani (dead) by Lrs. v- Smt. Kamal Rani (Dead) by Lrs. (AIR 1993 SC 142 has held tn para 25 of its judgment: "From an analysis of the above case-law it is clear that in the case of sale of tmmovable property there is no presuniption as to ttme being the essence of the contract Even if it is not of the essence ofthe contract the Court may infer fhat it is to be performed in a reasonable time tf fhe conditions are: (i) From fhe expi^ss terms of the contract; (ii) Proin fhe nature of the property; and (iii) From fhe surroiinding 1 '^. ^ circumstances, for example: the object of making the contract." 8. The Supreme Court in case of H.B. Pyarejan -v- Dasappa (dead) by Lrs. and others [(2006(2) SCC 496] has held in para 13 and 14 of its judgment as under: "13. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking beneflt of the spectfic performance of contract must manlfest that his conduct has been blemishless throughout entitling him. to the specific reUef. The provision tmposes a personal bar. The CoLu-t is to grant relief on the basis of the conduct of the person seeking relief. ff the pleadings mamfest that fhe conduct of the plaintiff entitles him to get fhe relief on perusal of the plaint he should not be denied the relief. 14. Section 16(c) of fhe Act mandates fhe plaintiff to aver m. fhe plaint and establish as fhe fact by evidence aliunde that he has always been ready and wUling to perforiu his part of fhe contract. .........." 9. The Supreme Court in case of Janki Vashdeo Bhojwani Vs. Industrial Banlc Ltd., (AIR 2005 SC 439) has held power of attorney holder cannot depose for prineipal in respect of matters of which only fhe principal can have personal knowledge and in respect of which principal is entitled to be cross-exammed. It is furtfaer observed fhat persons clauning share in property shoiitd have entered the witness box and discharged burden. The power of attomey holder cannot enter a witness box and depose instead of persons clainiing such share. 10. The Supreme Coiirt in case of Mayawanti -v- Kaushalya Devi [(1990) 3 SCC 1] whUe interpreting provisions of Section 9 of the Act has held, fhe specffic performance of a contract is fhe actual execution of fhe contract accordins to its stipulations and terms, and the courts direct the % ^ ais» \^ ") party in defaiilt to do the very thing which he contracted to do. The stipulations and tenns of the conta-act have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showtne the stipulations and terms of the contract and that fhe minds were ad idem is, of Course, on fhe plaintifF. If the stipiilations and terms are iincertain and the parties are not ad idem fhere can be no spectfic performance. 11. Applying fhe law laid down by fhe Supreme Court tn fhe above referred cases in fhe facts and circumstances of the case, alfhough it is true, time is not essence of contra.et in the facts and drcumstances of the present case but it is also true, plaintiff utterly failed to aver and prove his readiness and willmgness toperfin-m-Iiis part-ofcontract, also clauning relief with regard to specific property described in fhe plaint map which is not in conformity wtth the sale agreeinent inasiauch as the agreement of sale was entered into between the parties wlfh regard to 1.65 acres of land out of 2.36 acres of land owned by fhe defendant and not witfa regard to any specific khasra number or spect&c portion of the property. 12. In fhe light ofabove dlscussion, in our considered opinion, equity does not Be in plaintifis favour and leamed trial court has rightiy rejected plaintifPs prayer for speciflc peribrmance of contract and instead granted decree of refund of eamest nioney. 13. Therefore, the appeal fails and is dismissed. 14. No order as to costs. Sd/- I.M.Q»ddusi Judge Sd/- N.K. Agrawal Judge