1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R SURENDRA SINGH VS LRs OF BHANWAR LAL & ORS D.B. CIVIL SPECIAL APPEAL NO. 31/1993 Date of order : 30th May, 2005 PRESENT HON'BLE MR. JUSTICE B. PRASAD HON'BLE MR. JUSTICE S.P. PATHAK Mr. B.L. Purohit for the appellant. Mr. R.K. Thanvi for the respondent. = : = : = : = : = REPORTABLE BY THE COURT :- (PER HON'BLE B. PRASAD,J.) This Special appeal has been filed against the decision of the learned Single Judge in Civil First Appeal No60/73 decided on 5th March, 1992. The proceedings were initiated on filing of Civil Original Suit No. 57/1965 in the court of Additional District Judge, Udaipur. The suit was for specific performance of contract entered in between the parties. After trial, the trial court was of the opinion that plaintiff has not been able to make out a case for ordering specific performance of contract. The trial court found that the document Ex.2 dated 07.12.62 was a false and forged document. It was concluded that Rs. 15,000/- received by the defendant was an 2 independent loan transaction. It was repaid with interest to the plaintiff on 21.05.65 by holding the receipt Ex.A/2 to be genuine. The trial court also concluded that there was no transferable right vested with the defendant on the day when agreement was entered in between the parties. Since, there was no transferable right vested in the defendant, the suit for specific performance of the contract would not lie and in view of the aforesaid finding of the trial court, the trial court dismissed the suit for specific performance. The trial court also found that Rs. 15000/- were repaid therefore, suit for recovery of money on the basis of promissory note was also dismissed. However, the suit was decreed for Rs.1000/-, the amount which was paid by the plaintiff to the defendant at the time of execution of the agreement Ex.1. Apart from the relief of re-payment of Rs.1000/-, rest of the suit was dismissed. Aggrieved by the decision of the trial court, a first appeal was filed in this Court. The learned Single Judge while deciding the appeal noticed that most important document which was important to adjudicate the controversy was Ex.2, the agreement dated 07.12.62 and receipt Ex.A/2 dated 21.05.65 but they were not available on record. The learned Single Judge also noticed that opinion of the handwriting expert Shri C.S. Servate alongwith relevant photographs on which he has based his opinion was not available on record. The learned Single Judge observed that on the basis of the pleadings of the parties, it is apparent that there was no dispute on the 3 fact that on 30.11.62, an agreement was executed in between the parties. By this agreement, the defendant agreed to sell Plot No. 8 situated at Surajpole, Delhi Gate Scheme, Udaipur. The sale consideration was fixed as Rs. 34000/- out of which Rs. 1000/- was paid by the plaintiff to the defendant on that day. It has been noticed that on 07.12.62, a sum of Rs. 15,000/- was paid by the plaintiff to the defendant and a promisory note Ex.3 was executed by the defendant. In this connection, notices were sent and their receipts Ex. 5 & Ex.6 are also not disputed by the defendant. The defendant in reply to the notice Ex.6, admitted the document dated 08.05.63. The defendant has also not disputed that Ex.A/7 the allotment letter for Plot No.8 was issued in favour of the defendant. This document was shown to the plaintiff when document E.1 was executed in between the parties. Above facts have been noticed by the learned Single Judge in his judgment, as admitted facts. Apart from the above mentioned facts, it has been noticed by the learned Single Judge that there is a serious dispute between the parties qua certain points. They relate to the execution of Ex.D/2. It is also disputed whether advance of Rs. 15000/- was an independent transaction of loan or an advanced as consideration of agreement to sale of the plot in question and the said agreement was kept alive. As claimed by the defendant, Rs.15,000/- was re-paid on 21.05.65 for which document Ex.A/2 was executed. In this connection, it has been disputed that if Rs. 15000/- 4 was not returned with interest on 21.05.65, then whether the plaintiff would be entitled to recover this amount. Learned Single Judge proceeded on the bass of the admitted and disputed facts and observed that main challenge of the appellant is on the findings of Issue No.7(a) and 7(b). Learned Single Judge was of the opinion that on the basis of the record, it was not proved that sum of Rs. 15000/- was re-paid. Learned Single also found that the opinion of the handwriting expert of the defendant is not conclusive. Finally, the learned Single Judge came to the conclusion that two facets of evidence suggested by the defendant are highly contrary to the normal course of human conduct and held that it is difficult to believe that the payment of money was made by the defendant to the plaintiff without asking for the promisory note which is alleged to have been executed in consideration there of. The promisory note having remained with the plaintiff, the payment as alleged by the defendant was not found proved by the learned trial court. The learned Single Judge was also of the opinion that the agreement subsisted in between the parties is a valid agreement and reversed the finding on Issues No. 7(a) and 7(b). Learned Single Judge therefore was persuaded to reverse the finding of the record on Issue No.7(a) and 7(b). These findings on Issue No. 7(a) and 7(b) became final. There were no steps taken by the respondents to challenge them. In the final conclusion, the learned Single Judge was of the opinion that since the plaintiff in its prayer clause has 5 made a prayer to the effect that if specific performance is not granted, then in the alternative, the amount advanced may be returned with interest. Learned Single Judge found that the plaintiff was not ready and willing to get the performance of contract made and therefore, coupled with the fact that he had made an alternative prayer for payment of money, order of specific performance of contract is not granted. Learned Single Judge granted return of the amount paid by the plaintiff to the defendant with interest @ 6% per annum. Feeling aggrieved by the findings of the learned Single Judge, this appeal has been filed by the plaintiff. Learned counsel for the appellant supporting his appeal urged that the learned Single Judge has held that a valid agreement was there. He has also held that the case of the defendant respondent wherein, he claimed that a sum of Rs.15,000/- were repaid was false. The defendant is guilty of fabrication. In a case where equitable jurisdiction is exercised, a party which is held to be guilty of fabrication looses his right to be addressed in the realm of equity. Grant of specific performance is an equitable jurisdiction. Finding against the defendant respondent that he is guilty of fabricating a document to defraud the plaintiff goes a long way in knocking down the case of the defence. In the agreement of the parties, the defendant respondent had agreed to do all that was required to be done for conveying 6 the title. Having defeated him by taking shelter behind the terms of the allotment letter, the defendant is trying to further put premium on a fraud committed by him. The plaintiff further asserted that the dispossession of the defendant had already been set aside by the Division Bench of this Court. Possession has been restored to the defendant. This was ordered by this Court in 1984. In the order under reference, this Court left it to the U.I.T to take proceedings for dispossessing the appellant in accordance with law. We are informed that till date no such proceedings have been initiated. The U.I.T is perhaps not interested in dispossessing the petitioner. That being the position the petitioner is in possession in the light of original allotment letter. According to the learned counsel for the appellant, all the issues which are material have been held against the defendant respondent. Only on one count, that it would not be equitable to grant specific performance in favour of the plaintiff, the learned Single Judge has held against the appellant. According to the learned Single Judge, the appellant was ready to receive payment of money with interest as per his prayer in the suit. To support his argument, the learned counsel for the appellant relies on a case decided by the Hon'ble Supreme Court in the case of Mademsetty Satyanarayana Vs G. Yelloji Rao and others reported in AIR 1965 SC 1405, 7 wherein, Hon'ble Supreme Court has held as under :- “This passage indicates that either waiver or conduct equivalent to waiver alongwith delay may be a ground for refusing to give a decree for specific performance.” Learned counsel emphasizes that the doctrine of waiver as is prevalent in England has no relevant and in this case, law has been laid down in the following terms :- “9. It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specific performance.” Hon'ble Supreme Court has further held : “As Article 113 of the Limitation Act prescribes a period of three years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending upto the said period cannot possibly be a reason for a Court to exercise its discretion against being a relief of specific performance. Nor can the scope of the discretion, after excluding the case mentioned in Section 22 of the Specific Relief Act, we confine to waiver, abandonment or estoppel.” Learned counsel further relies on the law which has been laid down in the following terms :- 8 “......(2) Under the Indian law, relief of specific performance could be refused only if the plaintiff abandons or waives his right under the contract; and in the present case, the appellant had not established either abandonment or waiver by the first respondent of his right under the contract, for indeed as soon as he saw that the appellant had laid foundations for putting up structures on the plots, he rushed without any delay to the Court and filed the suit.” Hon'ble Supreme Court has further held as under :- “While in England mere delay and laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre- condition necessary to dis-entitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise.” It has been canvassed that in this case, all through the plaintiff did whatever, he was required to do and therefore, the delay would not be of any consequence which would induce a Court to refuse in its discretion a relief for grant of specific relief. Learned counsel further relied on a case decided by the 9 Hon'ble Supreme Court in the matter of Ramesh Chandra Chandiok and Anr Vs Chunni lal Sabharwal reported in AIR 1971 SC 1238. Hon'ble Supreme Court has held as under :- “We are unable to concur with the reasoning or the conclusions of the High Court on the above main points. It is significant that the lase deed was not execute in favour of the respondents by the Government until May 21, 1956. So long as their own title was incomplete there was no question of the sale being completed. It is also undisputed that according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry before transferring the plot to any one else. The respondents were fully aware and conscious of this situation much earlier and that is the reason why on 11-8-1955, it was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The statement contained in Exhibit P-7 that the execution of the sale deed “by us cannot be complete without the said sanction” was unqualified and unequivocal. The respondents further undertook to inform the appellants as soon as sanction was received and thereafter the sale deed had to be executed within a week and got registered on payment of the balance amount of consideration. We are wholly unable to understand how in the presence of Exhibit P7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Exhibit P-8 dated June 15, 1956 that he respondents were having second thoughts and wanted to 10 wriggle out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never applied for any sanction after August 11, 1955 and took up the position that they were not prepared to wait indefinitely in the matter and were therefore cancelling the agreement “for want of certainty”. We are completely at a loss to understand this attitude nor has any light been thrown on the uncertainty contemplated in the aforesaid letter. It does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt to obtain it. This is obvious from the fact that when they actually applied for sanction on November 11, 1956, it was granted after almost a week. The statement contained in Exhibit P-10 dated July 4, 1956 that the sanction was not forthcoming has not been substantiated by any cogent evidence as no document was placed on record to show that any attempt was made to obtain sanction prior to November 11, 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking given in Exhibit P-7 dated August, 11, 1955 had been fulfilled by them. The sanction was given in November, 1956 and even then the respondents did not inform the appellants about it so as to enable them to perform their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appellants had failed to perform their part of the agreement within a reasonable time.” (emphasis applied) 11 Learned counsel for the appellant has further relied on a decision of this Court in the matter of Deenanath Vs Chunni lal reported in AIR 1975 Rajasthan page 69 wherein this Court relying on the provisions of law as contained in Section 20 of the Specific Relief Act held that it is discretion of the Court to grant or not to grant specific relief but mere delay extending upto the period of limitation cannot be a possible reason for a Court to exercise its discretion of giving a relief of specific performance. It has been held as under :- “The learned counsel for the respondent argued that specific performance should not be granted in the present case as there were laches and delay on the part of the plaintiff. It was submitted that the agreement ex.A/1 was entered into on 22-2- 1964 and the suit was instituted on 5-12-1967 although the defendant declined to execute the sale deed by his notice dated 14-1-1966. It was argued that since the plaintiff did not take any steps to enforce his right for about two years, he was not entitled to the discretionary relief of specific performance. In my opinion, there is no substance in the above contention. Article 54 of the Limitation Act, 1963 prescribes a periof of three years from the date fixed for the specific performance of the contract and if no such date is fixed when the plaintiff has notice that the performance is refused by the defendant. In the present case, no date was fixed for the performance of the contract. The plaintiff came to about refusal on the part of the defendant to perform the contract on January 14, 1966. The suit was therefore brought within the prescribed period of 12 limitation on 5-12-1967. The learned counsel was not able to point out any circumstance which may attract any of the three clauses mentioned in sub-section (2) of Section 20 of the Specific Relief Act of 1963. Mere delay extending upto the period of limitation cannot possibly be a reason for the Court to exercise its discretion against giving a relief of specific performance. I am fortified in my view by the decision of their Lordships of the Supreme Court in Mademsetty Satyanarayana Vs G. Yelloji Rao, AIR 1965 SC 1405.” (emphasis applied) Learned counsel for the appellant has further relied on a case decided in the matter of Moti lal Jain Vs Ramdasi devi & Ors reported in JT 2000 (8) SC 59 wherein Hon'ble Supreme Court has held as under :- “9. That decision was relied upon by a three Judges Bench of this Court in Syed Dastagir's case (supra), wherein it was held that in construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed, "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract." So the 13 compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale. “ Learned counsel for the appellant urged that the entire case has been held against the defendant respondent except two points that the petitioner was not ready and willing to perform his contract. He had preferred all the litigation within the limitation but on the last days and the other aspect which has weighed heavily with the learned Single Judge is that there were certain clauses in the sanction letter in favour of the respondent defendant that if he violates them, then he will not be able to transfer the plot in question. These two points are too mundane to be considered to be refuse the specific performance of contract to the appellant. Learned counsel for the respondent on the other hand, urged that the judgment of the learned Single Judge has proceeded on sound principles of law,wherein the learned Single Judge observed that the performance of contract dated 30.11.62 was not possible on the admitted facts because no absolute right of transferring right had vested in the 14 defendant respondent regarding the land in question until 30.11.62. The learned counsel urged that the finding of the learned Single Judge was correct wherein, he has observed that only right the defendant had on 30.11.62 was to get his highest bid accepted from the U.I.T. The title of the defendant is still not perfect. According to the learned Single Judge, in terms of the allotment letter, he was required to fulfill obligations which have been narrated in Ex.A/7 and have been quoted by the learned Single Judge in the judgment. Since, on the ground of various considerations and the various obligations having not been complied with, the allotment was liable to be cancelled and in fact cancelled, though cancellation and dispossession of the defendant is still pendente lite before this Court. Though orders of the U.I.T dispossessing the defendant has been set aside by the Division Bench of this Court but the question of injunction is still pending before the learned Single Judge of this Court in second appeal. Learned counsel further emphasized that there was a condition in the allotment letter which prescribes that until the building work on the plot in question is completed, the sale should not be made. The right of the defendant respondent was not absolute and was eclipsed by the conditions narrated in the allotment letter Ex.A/7. These restrictions were sufficient to put a bar on the defendant on the sale of plot in question. Since in law, the defendant was not in a position to make a sale prior to fulfillment of the obligations narrated, therefore, it was not lawful to execute the sale deed. 15 The conditions enumerated in Ex.A/7 according to the learned Single Judge was dependent on the discretion of the U.I.T and if the performance is granted in favour of the plaintiff, then that would amount to pre-empt the discretion which is lawfully vested in the U.I.T. That being the position, learned counsel for the defendant urged that performance was not voluntarily denied by him but was on account of legal lacunaes. Further, the plaintiff has not fulfilled its obligations of showing that he was ready and willing to perform the contract. No effective action on the part of the plaintiff was taken to secure specific performance. The suit for specific performance was filed on the last date of limitation. The appeal before the learned Single Judge was filed on the last date of limitation. The appeal before the learned Division Bench was filed after two days delay which was of course condoned by the Court. Thus, althrough acting on the last minute shows that plaintiff was not ready and willing to perform his part of the contract and therefore, the learned counsel for the respondent urged that the specific performance has not been rightly granted in favour of the plaintiff. Learned counsel for the defendant further urged that in terms of Section 20 of the Specific Relief Act, grant of specific performance is the discretion of the Court. The discretion has been exercised against the appellant by the two courts below. In a Special appeal, this is the third chance and therefore, grant of discretionary relief should not be made in 16 favour of the plaintiff. The learned counsel for the respondent has further urged that