// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil First Appeal No.511/2005 {M/s Malhan Construction & Others Vs. N.K. Gupta & Another} Date of Order ::: 25th March, 2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri N.N. Agarwal with Shri Subodh K. Pathak and Shri Satish Khandal, Counsel for appellant Shri R.K. Agarwal with Shri B.L. Agarwal and Shri Deepak Saraswat and Shri Amit Gupta and Ms. Manjeet Kaur, Counsel for respondents #### //Reportable// By the Court:- The defendant-appellants have preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 2nd May, 2005 passed by the Additional District Judge No.5, Jaipur City, Jaipur, whereby the learned trial court decreed the Civil Suit No.116/2004 of the plaintiff- respondent No.1 for specific performance of the agreement dated 19th May, 2004 and permanent injunction. Briefly stated the facts of the case giving rise to this appeal are that plaintiff-respondent No.1 N.K. Gupta filed a suit for specific performance of the agreement dated 19th May, 2004 (Exhibit-1), possession and permanent injunction // 2 // in the Court of District & Sessions Judge, Jaipur City, Jaipur against the defendant-appellants and the defendant-respondent No.2, which was transferred for disposal to the Court of Additional District Judge No.5, Jaipur City, Jaipur. In the plaint, the plaintiff pleaded that the defendants No.1 to 3 agreed to sell their plot of land bearing No. DC-2 situated at Lal Kothi, District Center, Jaipur, measuring total area of 5631.9 square meters, to the plaintiff for a consideration of Rs.4,10,00,000/- (Rupees four crore ten lac only). The plaintiff paid Rs.7,00,000/- (Rupees seven lac) through Cheque No.018173 and Rs.3,00,000/- (Rupees three lac) by cash, to the defendants No.1 to 3. In addition to the above sale consideration, the plaintiff also agreed to give a showroom measuring 1000 square feet super-built-area on the ground-floor after completion of the construction of the complex over the land in dispute, to the defendants No.1 to 3. The agreement was reduced in writing on 19th May, 2004. The said plot was allotted by the defendant No.4 Jaipur Development Authority (for short, 'the JDA') in favour of the defendants No.1 to 3, on 28th October, 2000. The defendants No.1 to 3 were required to get the sale-deed executed in their favour from the JDA and, as per the terms of the agreement, the remaining amount of sale- consideration was to be paid at the time of // 3 // Registry; the entire proceedings of the agreement were to be completed within a period of sixty days. The defendants No.1 to 3 did not get the sale-deed executed and registered in their favour from the defendant No.4 JDA. The plaintiff was required to pay the remaining amount of sale- consideration at the time of Registry before the Sub-Registrar and, he was always ready and willing to perform his part of the agreement. Since the plaintiff was not informed by the defendants No.1 to 3 as to whether they got the sale-deed executed and registered in their favour from the JDA, therefore, the plaintiff served a notice on 5th July, 2004 on the defendants No.1 to 3 through his Advocate wherein the defendants No.1 to 3 were asked to let the plaintiff informed as to whether they got the sale-deed registered in their favour from the defendant No.4 JDA, or not, and when would they get the sale-deed registered in favour of the plaintiff; the plaintiff is always ready and willing to pay remaining amount of sale- consideration before the Sub Registrar. The defendants No.1 to 3 sent their reply to the above notice, on 16th July, 2004, stating therein that the plaintiff should pay the registry charges of the lease-deed to be executed and registered by the defendant No.4 JDA in favour of the defendants No.1 to 3, otherwise they would refund the amount of Rupees ten lac paid to them. They further stated that it was also agreed upon in between the // 4 // parties that the plaintiff would bear the expenses in respect of lease-deed to be executed and registered by the defendant No.4 in favour of defendants No.1 to 3. The plaintiff thereafter sent a rejoinder on 26th July, 2004 to the reply of the defendants No.1 to 3 dated 16th July, 2004 making it clear that it was never agreed in between the parties that the plaintiff would bear the expenses of execution, stamping and registry of the lease-deed to be executed by the defendant No.4 in favour of the defendants No.1 to 3; therefore, the plaintiff asked the defendants No.1 to 3 to get the lease-deed executed and registered immediately in their favour and thereafter to execute and register the sale-deed in favour of the plaintiff; the plaintiff further stated in the rejoinder that he has always been ready and willing to pay the remaining amount of sale- consideration and he has sufficient funds for the same. Thereafter, the defendants No.1 to 3 gave a threatening on 28th July, 2004 to the plaintiff that they would sell the disputed plot to some other person; thereupon, the plaintiff got a public notice published in the daily newspaper 'Rajasthan Patrika' on 31st July, 2004 to the effect that the defendants No.1 to 3 have agreed to sell the above disputed property to plaintiff by executing the agreement, therefore, if the same is purchased by any one then it will not be binding on the plaintiff. The plaintiff also gave // 5 // an application to the Additional Director, JDA, on 10th August, 2004 and prayer was made therein not to transfer the aforesaid plot in the name of any other person. It was further pleaded in the plaint that due to the threatening given by the defendants No.1 to 3 to the plaintiff on 28th July, 2004 and 10th August, 2004 to the effect that, on account of price hike of the disputed land, they would sell it to some other person and, as such, the plaintiff was compelled to file a suit for permanent injunction immediately, which was filed against the defendants No.1 to 3 in the trial Court on 25th August, 2004 with the prayer that by way of permanent injunction, the defendants No.1 to 3 be restrained from transferring the said plot by means of sale-deed, mortgage, gift or in any other manner and they should not handover the possession thereof to anyone. It was also pleaded that the defendants filed their written-statement to the suit for injunction wherein they specifically admitted in Para 11 thereof that they gave threatening to the plaintiff on 28th July, 2004 and 10th August, 2004 that they would sell the disputed property to some other person, which shows dishonesty on the part of the defendants No.1 to 3 and, as such, the plaintiff is entitled to get a decree of specific performance of the agreement dated 19th May, 2004, as well as possession of the disputed plot. The plaintiff // 6 // also filed an application for temporary injunction bearing No.65/2004 along-with the suit for injunction but the same was dismissed vide order dated 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of suit for specific performance, therefore, the present suit for specific performance is being filed immediately. The defendants No.1 to 3 filed their written-statement wherein they admitted execution of the agreement to sell on 19th May, 2004 in respect of the plot in dispute in favour of the plaintiff for a consideration of Rs.4,10,00,000/-, and they also received Rs.10,00,000/- from the plaintiff. It was denied that there was any condition in the agreement dated 19.05.2004 that first the defendants No.1 to 3 would get the sale deed executed and registered from the defendant No.4 JDA in their favour. The defendants No.1 to 3 had already paid total sale-consideration i.e. Rs.3,44,91,000/- with interest, of the plot, in dispute, which was allotted to them and only thereafter the defendant No.4 JDA delivered the possession thereof to them on 30th September, 2003 and, as such, the defendants No.1 to 3 are in actual physical possession of the plot, in dispute. It was specifically pleaded in the written-statement that, as agreed upon between the parties, the plaintiff was required to bear the expenses of both the registries. The time of sixty // 7 // days was the essence of the agreement. The notice dated 5th July, 2004 sent by the plaintiff was replied by the defendants through their Advocate on 16th July, 2004. The reply to the notice was rightly given by them. The facts relating to publication of public notice in the daily newspaper on 31st July, 2004 and filing of application dated 10th August, 2004 before the Additional Director, JDA, by the plaintiff, were denied. It was specifically admitted in Para 9 thereof that on 28th July, 2004 and 10th August, 2004 the defendants No.1 to 3 told the plaintiff that they would sell the disputed property to some other person as sufficient fund was not available with the plaintiff. It was denied that the defendants refused to sell the plot in dispute to the plaintiff on account of price hike of the disputed plot. The plaintiff filed a suit for permanent injunction along-with an application for temporary injunction; the said application was dismissed by the trial court on 28th October, 2004; the defendants sent a bank draft to the counsel of the plaintiff but the same was received back and thereafter the defendants furnished a copy of duplicate draft in the trial court but the plaintiff refused to accept the same. It was also pleaded that the order dated 28th October, 2004, dismissing the application for temporary injunction of the plaintiff, has become absolute and attained finality, and the present suit is // 8 // barred by principle of res-judicata under Section 11 of the CPC. In the specific objections took in the written-statement, the defendants pleaded that the present suit is barred by the provisions of Order II Rule 2 of the CPC. The earlier suit filed by the plaintiff for injunction is also pending in the trial court itself. The time was the essence of the agreement. The plaintiff has not deposited the remaining amount of sale-consideration as per the Agreement dated 19th May, 2004 in the Court, therefore, the suit is not maintainable and hence it was prayed that the suit of the plaintiff be dismissed. The plaintiff thereafter filed rejoinder denying the contents of the written-statement and reiterated the contents of the plaint. On the basis of the pleadings of the parties, the learned trial court framed five issues on 15th February, 2005, which have been reproduced in the impugned judgment passed by the trial court. The plaintiff, in support of his case, examined himself as PW-1 whereas the defendants, in support of their case, examined the defendant No.3 Jugal Kishore Malhan as DW-1. The plaintiff moved an application in the trial court on 27th April, 2005 for withdrawal of the earlier Suit No.89/2004 for injunction stating therein that he has already filed another Suit for specific performance of the agreement. The // 9 // defendants raised an objection for costs. The trial court, vide its order dated 27th April, 2005, allowed the application on payment of costs of Rs.1500/-; the plaintiff offered the amount of costs in the court itself which was accepted by the defendants. The learned trial court, after hearing the submissions of both the parties and examining the record of the case, decreed the suit of the plaintiff vide judgment and decree dated 2nd May, 2005. Being aggrieved with the same, the present appeal has been preferred by the defendants No.1 to 3. During the pendency of this appeal, the defendant-appellants moved an application under Order 41 Rule 27 CPC for the following documents to be taken on the record – (1) earlier plaint for permanent injunction, (2) written statement thereto, (3) rejoinder to the written-statement, (4) application of the plaintiff dated 27th April, 2005 for withdrawal of the suit, (5) order dated 27th April, 2005 of the trial court allowing the application of the plaintiff for withdrawal of the suit, (6) application under Section 151 CPC dated 15th January, 2005, and (7) order dated 28th October, 2004 dismissing the application for temporary injunction filed by the plaintiff. The aforesaid application under Order 41 Rule 27 CPC was allowed by this Court vide order dated 3rd September, 2007 and the documents annexed // 10 // therewith were ordered to be taken on the record. Shri N.N. Agarwal, the learned counsel for the appellants, argued that the learned trial court has wrongly interpreted the agreement to sell dated 19th May, 2004 (Exhibit-1) particularly the word “registry” which has been used at three places in the agreement i.e. in Conditions No.2, 4 and 5. It was contended that the word “registry” used in the agreement clearly speaks that the plaintiff was required to bear the costs, expenses and charges towards execution, stamping and registration of both the lease/sale-deeds i.e. the lease/sale-deed to be executed by the JDA in favour of the defendants No.1 to 3, and in respect of the sale-deed to be executed by the defendants No.1 to 3 in favour of the plaintiff. He contended that it is a settled proposition of law that a document must be read in its entirety; all parts of the deed should be read and intention of the parties must be gathered from the document itself. He contended that although there is no specific condition in the agreement requiring the plaintiff to bear the expenses in respect of lease-deed to be executed by the JDA in favour of the defendants No.1 to 3, but if the whole agreement to sell is read in the light of the statements of PW-1 and DW-1, both, then there remains no doubt that the plaintiff had agreed to bear the expenses of both the registries. Since the plaintiff refused to bear the expenses, costs and charges towards // 11 // execution, stamping and registration of the conveyance/sale-deed to be executed by the JDA in favour of the defendants No.1 to 3, therefore, he made himself not entitled for decree of specific performance of the agreement dated 19th May, 2004. He referred P.S. Ranakrishna Reddy Vs. M.K. Bhagyalakshmi and Another – (2007) 10 SCC 231. Learned counsel for the appellants further argued that the present suit for specific performance was barred under Order II Rule 2 CPC. He contended that cause of action for filing the earlier suit for injunction and the present suit for specific performance of the agreement was one and same; since the plaintiff failed to include whole of the claim in his first suit, his second suit for specific performance is liable to be dismissed being barred by the provisions of Order II Rule 2 CPC. The requirement of Order II Rule 2 CPC is that every suit should include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action. The defendants took a specific plea in respect of bar of the suit under Order II Rule 2 CPC and a specific Issue No.4 was framed in this regard but the trial court committed a serious illegality in not correctly appreciating the object behind Order II Rule 2 CPC and this Issue was wrongly decided against the defendants, hence the finding of the trial court in respect of Issue No.4 is liable to be reversed and the plaintiff's suit is liable to be // 12 // dismissed. In support of his contention, he referred - Kamal Kishore Saboo Vs. Nawabzada Humayun Kamal Hasan Khan – AIR 2001 Delhi 220, Gajanan R. Salvi Vs. Satish Shankar Gupta – AIR 2004 Bombay 455, Radhika Devi Vs. Bajrangi Singh and Others – (1996) 7 SCC 486, Dadu Dayalu Mahasabha Jaipur (Trust) Vs. Mahant Ram Niwas & Another – 2008 (2) WLC (SC) (Civil) 357. The learned counsel for the appellants further argued that Section 16(c) of the Specific Relief Act makes it clear that mere plea about readiness and willingness is not sufficient but it has to be proved. Readiness and willingness of either party to the agreement to perform essential terms thereof, should be inferred from totality of the circumstances or their conduct. Mere filing of suit, without proof as to readiness and willingness, is not sufficient. The readiness and willingness of the plaintiff is not to be seen only by words of mouth but it is required to be seen from actual conduct of the plaintiff. If it comes from the facts pleaded and from the evidence of the plaintiff himself that the plaintiff was not ready and willing to perform his part of agreement then the court has no option but to dismiss the suit of the plaintiff. He referred the relevant paragraphs of the plaint and the statement of the plaintiff in this regard, and contended that the requirement of Section 16(c) of the Specific Relief Act was not fulfilled in the // 13 // present case and the trial court ought to have dismissed the suit of the plaintiff for specific performance. The trial court committed an illegality in deciding the Issue No.1 in favour of the plaintiff. In support of his submissions, he referred - M/s. Ceean International Private Limited v. Ashok Surana and Another – AIR 2003 Calcutta 263, Pushparani S. Sundaram and Others Vs. Pauline Manomani James and Others – (2002) 9 SCC 582, Aniglase Yohannan Vs. Ramlatha and Others – (2005) 7 SCC 534, and H.P. Pyarejan Vs. Dasappa (Dead) by LRS. And Others – (2006) 2 SCC 496. The learned counsel for the appellants further argued that the trial court wrongly decided Issue No.2 in favour of the plaintiff whereas looking to all the facts and circumstances of the case the decree of specific performance should not have been granted in view of specific provisions of Section 20 of the Specific Relief Act, and in support of his submissions, he referred - Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Others - AIR 1987 SC 2328, K. Narendra Vs. Riviera Apartments (P) Ltd. - (1999) 5 SCC 77, A.C. Arulappan Vs. Ahalya Naik (SMT) - (2001) 6 SCC 600, and M. Meenakshi and Others Vs. Metadin Agarwal (Dead) by LRS. & Others – (2006) 7 SCC 470. The learned counsel for the appellants also argued initially that time is essence of the agreement in the present case and suit was barred // 14 // by the provisions of Order 23 Rule 1 CPC as no permission was sought for filing the present suit for specific performance of the agreement while withdrawing his earlier suit for injunction, vide order dated 27th April, 2005. However, during the course of arguments, the learned counsel for the appellants did not press both the pleas. The learned counsel for the respondents, Shri R.K. Agarwal, argued that the trial court has considered the pleadings and evidence, oral and documentary, available on record, and has rightly decreed the plaintiff's suit. He contended that from the findings in respect of Issues No.1 and 2 recorded by the trial court, it is clear that not only the pleadings and contentions of the parties but also the oral and documentary evidence have been referred and considered and, by assigning cogent reasons, the said issues have been decided in favour of the plaintiff. The trial court has also decided Issue No.4 rightly in favour of the plaintiff. He further argued that there is no force in the submission of the learned counsel for the appellants about interpretation of the word “registry” used at three places in the Agreement dated 19th May, 2004. so far as interpretation of document Exhibit-1, he admits the legal position that a document must be read in its entirety; the intention of the parties must be gathered from the document itself; all parts of deeds must be read in their entirety in order to ascertain the nature // 15 // thereof. He submits that there is no ambiguity in the terms and conditions of the agreement dated 19th May, 2004 in the present case; during the course of arguments the learned counsel for the appellants himself agreed that there is no specific condition in the agreement as to who will bear the expenses of 'registry' of conveyance/sale deed to be executed by the JDA in favour of the defendants No.1 to 3; he argued that the submission of the learned counsel for the appellants that the word 'registry' used in the present agreement should be construed in such a manner that it includes both registries – first, the registry in respect of conveyance/sale deed to be executed by the JDA in favour of the defendants No.1 to 3, and second, the registry in respect of conveyance/sale deed to be executed by the defendants No.1 to 3 in favour of the plaintiff, is not tenable and cannot be accepted for the simple reason that there is no specific condition in this regard in the agreement. He contended that both the parties are businessmen of the same stream and they understand each and every term used in the agreement. The plaintiff was required to bear the expenses only in respect of registry relating to conveyance/sale deed to be executed by the defendants No.1 to 3 in favour of the plaintiff, and he was not required to bear the expenses of another registry, hence the same was not included in the agreement. He also referred // 16 // the statements of PW-1 and DW-1, and contended that even from the statements of both these witnesses, it is clear beyond any doubt that there was no specific condition in the Agreement dated 19th May, 2004 requiring the plaintiff to bear the expenses in respect of registry of the conveyance/sale deed to be executed by the JDA in favour of the defendants, therefore, it was a duty of the defendants No.1 to 3 to bear the expenses in this regard. He contended that in absence of any specific condition in this regard in the agreement the same can be determined and decided by referring the provisions of law, particularly Section 32 of the Rajasthan Stamp Act, 1998, and Section 29 of the Indian Stamp Act, 1899, wherein it has been specified as to who shall bear the expenses of providing proper stamp in the case of conveyance, and it lays down therein that in absence of an agreement to the contrary, the expense of providing the proper stamp in the case of a conveyance (including a re-conveyance of mortgaged property) shall be borne by the grantee; in the case of a lease or agreement to lease – by the lessee or intended lessee, as the case may be. He also referred a decision of Division Bench of the Allahabad High Court in Kunwarpal Sharma and Another Vs. State of U.P. and Others – AIR 2003 Allahabad 7, For the purpose of proper construction of documents, he also referred - Delhi Development Authority v. Durga Chand // 17 // Kaushish – AIR 1973 SC 2609 and B.K. Muniraju Vs. State of Karnataka and Others – (2008) 4 SCC 451. So far as readiness and willingness to perform part of the contract on the part of the plaintiff as required under Section 16(c) of the Specific Relief Act, the learned counsel for the plaintiff-respondent contended that as per the principle of law, the said fact can be decided by referring the relevant evidence and in this regard he referred the pleadings as well as oral and documentary evidence and contended that from the same it is clear that the plaintiff was always ready and willing to perform his part of the agreement and it was the defendants who did not perform their part of the agreement. In support of