^•^^'^ t^^^^- ^ ^^- Ojviajoji Beiidj BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR F.A.No (l^, /2010 / APPELLANT --DEFENDANT > Mahalaxmi Paddy Processing Company Ek Partnership Firm, House No. - 15/371 Jawahar Nagar Ramsagarpara, District Raipur (C.G.) VERSUS RESPONDENTS 'PLAINTIFF Subhashchand Gandhi, aged about 55 years, S/o Late Jaychand Gandhi, R/oGodpara Uddal Chow, Bilaspur (C.G.) APPEAL UNDER SEC. 96 OF THE CQDE OF CIVIL PROCEDURE. .^"-^'s^ HIGH COURT OF CHHATTISGARH : BILASPUR DB: Hon'ble Dr. Justice I. M. Quddusi & Hon'ble Mr. Justice G. Minhajuddin F.A. No. 118 of 2010 Appellant Mahalaxmi Paddy Processing Company Versus Respondent Subhashchand Gandhi AND F.A. No. 90 of 2011 Appellant Subhashchand Gandhi Versus Respondents Mahalaxmi Paddy Processing Company & others JUDGMENT AND ORDER FOR CONSIDERATION JUDGE (Z-12.2011 HON'BLE MR.JUSTICE G. MINHAJUDDIN x A^-^ Sd/- G. Minhajuddin Judge POST FOR JUDGMENT AND ORDER ON lil^ December, 2011_ Sd/- I.M.Quddusi Judge ^>.'[ s^ "^ ... ^ j # '^. 't^!^" .^ '^•^.^' HIGH COURT OF CHHATTISGARH : BILA8PUR F.A. No. 118 of 2010 Appellant Mahalaxmi Paddy Processing Company Versus Respondent Subhashchand Gandhi AND F.A. No. 90 of 2011 Appellant Subhashchand Gandhi Versus Respondents Mahalaxmi Paddy Processing Company & others APP^ALUNDERSECTIQN 96 OF THE CODE OF CIVIL PROCEDURE, 1908 DB: Hon'ble Dr. Justice I. M. Quddusi & Hon'ble Mr. Justice G. Minhajuddin, JJ Shri Kishore Bhaduri, Advocate with Shri Pawan Keshenvani, Advocate for the appellant. Shri Bhishma Kinger, Advocate for the respondent. JUDGMENT & ORDER (Oralt ( Passed on this 14th day of December, 2011 ) Per Dr. I. M. Quddusi J. These two appeals arise out of the judgment and decree dated 14th September, 2010, passed by the 9th Additional District Judge (F.T.C.) Raipur in Civil Suit No. 1-A/2008, partly decreeing the suit in favour of the plaintiff. The brief facts in nutshell are that the plaintiff/vendor (Subhash Chand Gandhi ) filed the Civil Suit No. 1-A/2008 for restoration ofhis possession and grant of damages as the defendant had failed to perform his part of the contract. The defendant/vendee had also filed the counter claim praying for specific performance of contract and for // "-- /r\^ "^ f.: '"• '^ direction to the plaintiff to execute the sale deed of the suit house in favour of the defendant as well as grant of permanent injunction against the plaintiff. 3. The case of the plaintiff/vendor was that on 30.7.1996/3.7.1996 he executed an agreement to sell the suit house No. 15/371, situated at Jawahar Nagar Ward, Ram Sagar Para, Raipur for total consideration of Rs. 7,22,800/- and accordingly handed over the possession of the suit house to the defendant (M/s Mahalaxmi Paddy Processing Company, a partnership firm) by receiving a Cheque of Rs. 1,20,000/-. It was the mandatory stipulation of the contract to sell that the purchaser/defendant would arrange for registration of the sale deed within one month from 30.7.1996/3.7.1996, failing which the earnest money would stand forfeited and the deal would also automatically loose its efficacy. 4. It is alleged that as the defendant was not ready to execute the sale deed in accordance with the agreement to sell and was not paying any heed to the oral request of the plaintiff. On 4.7.2001 and 18.1.2003 the plaintiff sent notices to the defendant for handing over the vacant possession of the suit house and to grant damages for illegal occupation. Though the defendant received both the notices but did not reply the same. Therefore, on 6.2.2003 the plaintiff filed a suit as a forma pauperis against the defendant for return of the possession and grant damages for illegal occupation of the suit house at the rate of Rs. 10,000/- per month i.e. total Rs. 3,60,000/- for the period 1.3.2000to28.1.2003. 5. On 9.4.2003 the defendant objected to the pauper suit. He admitted that he had received the notice dated 18.1.2003. On 28.4.2008 the defendant filed his written statement and counter claim. On 7.5.2008 7. 8. the plaintiff filed his reply in rebuttal to the defendant's counter claim denying all the allegations. In the counter claim the defendant claimed specific performance of the sale agreement and pleaded that an additional amount of Rs. 2,57,500/- on various dates were given to the plaintiffand his brother till 01.12.2005 towards the sale consideration. It is alleged that the sale deed could not be executed because the plaintiff expressed his inability to persuade his brother Tansukh Gandhi tojoin in the sale. The notice to admit and produce original acknowledgement (agreement dated 30.7.1996) moved by the plaintiff in the suit was not complied with by the defendant therefore the plaintiffs application under Section 65 of the Evidence Act for leave to adduce secondary evidence of the said document was allowed by the learned Trial Court. The evidence ofthe plaintiff (P.W.l), Om Prakash Agarwal (D.W.l) and Shiv Kumar Mishra (D.W.2), who was Accountant in the Firm, was recorded. Learned Trial Court framed as many as 9 issues to decide the controversy and having regard to the facts situation and the evidence on record, learned trial Court partly allowed the suit filed by the plaintiff and decreed the same with the direction that in accordance with the valuation ofthe property i.e. Rs. 7,22,800/-, the Court Fee of Rs. 73,168/- would be paid by the defendant in accordance with Order 33 Rule 10 of the Code of Civil Procedure and the defendant shall hand over the vacant possession of the suit house to the plaintiff, without any delay. Further, learned Trial Court has dismissed the counter claim filed by the defendant. Being aggrieved, the defendant has filed the First Appeal No. 118/2010 for setting aside of the impugned judgment and decree // dated 14th September, 2010, whereas the plaintiff has filed the First Appeal No. 90/2011 for modification of the impugned judgment and decree to the extent of the findings given to issue No. 8 (refusal to grant damages), issue No. 3 (the plaintiff and his brother received money from the defendant), and issue No. 2 (brother of the plaintiff is co-owner of the suit house). 9. We have heard learned counsel appearing for the parties and perused the records. 10. Learned counsel appearing for fhe defendant would assail the impugned judgment and decree on the ground that the defendant is in possession of the suit property on the basis of the agreement to sell executed between the parties. It is admitted that the suit property belongs to the plaintiff and his brother and due to dispute between both the brothers; the plaintiff was not in a position to execute the sale deed. The counter claim of the defendant was well within limitation. He was always ready and willing to purchase the suit house. Learned trial Court has failed to consider the provisions of Section 13-B of the Specific Relief Act, 1963 according to which the defendant is entitled for execution of the sale deed and the possession of the defendant is required to be protected in accordance with the provisions of Section 53-A of the Transfer of Property Act. 11. Learned counsel appearing for the plaintiff would submif that the plaintiff is the sole owner of the suit house and his brother (Popat Lal alias Tansukh Gandhi) had no share or title in the suit property. The plaintiff himself had handed over the possession of the suit house to the defendant-firm. In the records of the Municipal Corporation the suit house is recorded in the name of the plaintiff. As the defendant failed to perform his part of the contract, it come to an end and as the defendant refused to return the possession of the suit house the plaintiff is entitled to damages of Rs. 3,60,000/- at the rate of Rs. 10,000/- per month for the period 01.3.2000 to 28.2.2003. During pendency of the suit the defendant -firm was dissolved therefore the survriving partners of the firm have been impleaded in the instant appeal. The alleged receipts of money received by the plaintiff are false and forged. It has been wrongly held by the trial Court that the brother of the plaintiff had received Rs. 2,48,500/- and the plaintiff had received an additional amount of Rs. 9,500/-. The discussions made by the learned trial Court in paragraphs No. 12, 13 and 14 of the impugned judgment with regard to alleged money receipts are beyond the scope of the suit. 12. Learned trial Court having regard to the facts circumstances and the evidence on record arrived at the finding that the defendant is in unauthorized possession of the suit house, the suit house is the joint property of the plaintiff and his brother, the plaintiff is not entitled to get a total sum of Rs. 3,60,000/- from the defendant towards damages for having been in unauthorized possession of the suit house for three years and the defendant is not entitled to the relief prayed for in the counter claim. Further, the trial Court has recorded the findings that it is not proved that only a sum of Rs. 3,45,000/- is left for payment towards full and final consideration regarding sale of the suit house, it is not proved that the defendant was always ready to execute the sale deed and he was having the sufficient fund to make payment of full and final consideration regarding sale of the suit house and also it is not proved that the defendant is competent to comply with the conditions of the agreement. Thus, partly allowing the suit of the plaintiff and dismissing the counter claim of the defendant, learned y -J trial Court has directed the defendant to hand over possession of the suit house to the plaintiff without delay and the defendant shall make payment of Rs. 73,168/- towards court fees in accordance with the provisions of Order 33 Rule 10 of the Code of Civil Procedure. 13. Indisputably, the agreement to sell the suit house was executed between the parties on 3.7.1996 and the defendant had made payment of a sum of Rs. 1,20,000/- to the plaintiff by way of Cheque, as advance. Be that as it may, the sale deed could not be executed, therefore, the plaintiff sent a notice on 4.7.2001 and a further notice on 18.1.2003 to the defendant, which were duly received by the defendant. The defendant did not reply to both the notices therefore the plaintifffiled the Civil Suit No. l-A/2008 on 6.2.2003. It is evident that the defendant is in an uninterrupted possession of the suit house since 3.7.1996 and no amount towards rent etc. is paid to the plaintiff. Learned trial Court has found that the brother of the plaintiff had received a total sum of Rs. 2,48,500/- and the plaintiff himself has received Rs. 9,500/- from the defendant but not as a part amount of sale consideration. It is not proved as to whether the defendant was ready with the amount of sale consideration to get the sale deed executed and he had made some effort at his end in this regard or there was failure on the part of the plaintiff to execute the sale deed. The defendant had not replied to the first notice dated 4.7.2001 and the civil suit was filed on 6.2.2003 after issue of the second notice dated 18.1.2003. Thus, it is not established that the defendant was always ready and willing to get the sale deed executed and he had made any kind of effort in this line. 14. In the notice dated 4.7.2001 (Ex.P/1), received by the defendant, it was categorically mentioned that the plaintiff had executed an ^f^ ^, f^si ^ %.. ^ J ^ agreement to sell on 30.7.1996. The defendant had not taken any steps to get the sale deed executed within a period of three years from the date of the agreement to sale. The defendant is in unauthorized possession of the suit house therefore he is liable to pay damages at the rate of Rs. 10,000/- per month from the month of July, 1998 to June 2001, and hand over the vacant and peaceful possession of the suit house, else the plaintiff would be constrained to file the civil suit. Even on receipt of this notice the defendant did not take any steps and not bothered to reply the contents of the notice. 15. It is well settled that in a contract or agreement 'readiness' and 'willingness' cannot be read independently. Hon'ble Supreme Court in Man Kaur (dead) by Lrs Vs. Hartar Singh Sangha1 has held that in a suit for specific performance plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract. Hon'ble Supreme Court in paragraph 11 held as under: a 11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the '(2010) 10 SCC 512 7 purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned." 16. The question for consideration before us is whether the defendant was ready and willing to pay the reraainder amount due, as per the sale agreement. Explanation (ii), Sub-clause (c) of Section 16 of the Specific ReliefAct, 1963 readsi as under: "16. Personal bars to relief. - Specific performance ofa contract cannot be enforced in favour of a person— (c) 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 terms the performance of which has been prevented or waived by the defendant. Explanation.—Forthe purpose ofclause (c) - (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. ?? 17. A bare reading of the above quoted provisions of law would show in case of failure on the part of any of the parties to the agreement/contract, specific performance of the contract cannot be enforced in favour of that party who fails to prove that he has performed his part of contract. The parties to the agreement must also prove that they were always ready and willing to perform their part of the obligations in terms of the contract in its true spirit. In the instant case, we have found that the defendant has failed to perform his part of the contract as he has never shown his readiness and willingness by leading evidence. However, at this stage, we are not inclined to grant damages as sought by the plaintiff in his appeal. ^ "/>' ^ 18. In view of the above discussion, we are of the opinion that learned trial Court has marshalled the evidence in its right perspective and has passed a reasoned judgment. We do not find any illegality, irregularity, pervrersity or jurisdictional error warranting interference in the impugned judgment. 19. Accordingly, both the appeals are dismissed. No order as to costs. sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Thakur