FIRST APPEAL No.278 of 1992 Against the Judgment & Decree dated 07.08.1992 passed by Sri Umakant Srivastava, Ist Subordinate Judge, Ara in Title Suit No.56 of 1986. ------- SMT. SABITRI DEVI ------------Defendant-Appellants Versus SMT. SHANTI UPADHYA --------------Plaintiff-Respondent For the Appellant Mr. Dhruv Narayan, Sr. Advocate Mr. Bipin Kumar Sinha, Advocate Mr. Sunil Ravi, Advocate For the Respondent Mr. Surendra Kumar Singh, Sr. Advocate Mr. Sunil Srivastava, Advocate Mr. Pravin Prakash, Advocate Dated : 19th 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 defendant, Smt. Sabitri Devi has filed this First Appeal against the Judgment dated 07.08.1992 and the Decree following thereupon singed on 14.08.1992 by Sri Umakant Srivastava, the leaned Ist Subordinate Judge, Ara in Title Suit No. 56 of 1986 decreeing the plaintiff-respondent’s suit for specific performance of contract. (2) The plaintiff-respondent filed the aforesaid suit for specific performance of contract alleging that the defendant is owner of the suit property entered into an agreement on 17.09.85 to sell the property described in Scheduled 1 of he plaint for a consideration of 2 Rs.2,90,000/-. Rs.1051/- was paid by the plaintiff as shagun at the time of negotiation and executed the agreement on receiving advance of Rs.50,000/-. The defendant agreed to execute sale deed by 5th March, 1986. The defendant did not execute the sale deed by 05.03.1986 and requested the plaintiff to allow time for vacating the house and, therefore time was extended up to 28.04.1986and the sale deed was to be executed by 29.04.86. The plaintiff was all along ready and willing to perform her part of the contract. (3) The further case is that the defendant was in need of money and requested the plaintiff to pay Rs.40,000/- and the plaintiff paid Rs.40,000/- to the defendant. At the time of extension of time, the defendant has also received Rs.10,000/- from the plaintiff. Therefore, the plaintiff has paid total Rs.1,01,051/- and the remaining Rs.1,88,949/- remain to be paid as balance consideration amount. The defendant had also taken Rs.40,000/- from the plaintiff for the purchase of stamp for sale deed. The plaintiff is all along ready to pay the balance consideration and get the sale deed executed but the defendant is delaying the execution of the same. On 28.04.86, the defendant refused to execute the sale deed. Hence the suit was filed on 29.04.86. (4) On being noticed the defendant-appellant appeared and filed a contesting written statement. The main defence of the appellant is that at the instance of the plaintiff, the time was extended because she was not able to pay the balance consideration amount. The execution of the contract dated 3 17.09.85 is admitted. However, according to the defendant only Rs.50,000/- was paid by the plaintiff as advance and at the time of extention of time for second time Rs.10,000/- was paid again by the plaintiff. Therefore, the defendant accepted to have received only Rs.60,000/- as consideration amount. The payment of other amount alleged by the plaintiff has been denied by the defendant. (5) The further defence is that the total amount remained due was Rs.2,30,000/- but the plaintiff was never ready to pay the said dues and got the sale deed executed, therefore, the defendant served a notice through her Advocate but no reply was sent by the plaintiff. Again a registered notice was given by the defendant on 21.04.86 but the plaintiff did not pay balance consideration amount nor they got the sale deed executed. It is further alleged that the plaintiff was never ready and willing to perform her part of the contract. And that the defendant never refused to execute and register the sale deed. (6) On the basis of the above pleadings, the learned Court below framed 5 issues : (i) Is the suit as framed maintainable? (ii) Is the plaintiff got any valid cause of action for the suit? (iii) Is the suit barred by limitation ? (iv) Is the plaintiff entitled to a decree as claimed for? (v) To what other relief or reliefs the plaintiff is entitled for ? (7) After trial the learned Court below while deciding issue No.4, found that the plaintiff had paid Rs.60,000/- only as advance and she was ready and willing to perform her part of the contract 4 and she is still ready to perform her part of the contract and pay the rest consideration money. On this finding, the plaintiff-respondents suit was decreed and the defendant-appellant was directed to execute the sale deed after receiving the amount of Rs.2,30,000/- the due consideration money within three months. (8) Mr. Dhruv Narayan, the learned senior counsel appearing on behalf of the appellant submitted that the plaintiff-respondent did not approach the Court with clean hand and the learned Court below therefore should not have granted the discretionary relief of specific performance of contract. According to the learned counsel when the learned Court below found that the plaintiff has paid only Rs.60,000/- then in such circumstances, it could not have been found that the plaintiff was all along ready and willing to pay the balance consideration of Rs.2,30,000/-. The learned counsel further submitted that although generally in the case of contract for sale in relation to immovable property time is not the essence of the contract but the party can make the time essence of the contract by serving notice. In the present case, notices were served by the defendant-appellant asking the plaintiff-respondent to pay the balance consideration amount and get the sale deed executed and registered but no reply was sent by the plaintiff because plaintiff was never ready and willing to perform her part of the contract as she had no money with her. The learned counsel further submitted that on the very next day, the suit was field which indicate that in fact she has no money. Otherwise she could have paid the money due and could have obtained the sale deed executed. On these 5 grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside. (9) On the other hand, Mr. Surendra Kumar Singh, the learned senior counsel appearing on behalf of the plaintiff- respondent submitted that according to Section 16 (C) of the Specific Relief Act, the plaintiff has clearly averred in the plaint that the plaintiff was all along ready and willing to perform her part of the contract and also adduced evidence in support of the said averment. Moreover, the suit itself was filed on 29.04.1986, therefore, it cannot be said that the plaintiff was not ready and willing to perform her apart of the contract. The learned counsel submitted that after considering the oral as well as documentary evidences, the learned Court below found that at the instance of the defendant, the time was extended, therefore, impliedly it will mean that the appellant was not ready to perform her part of the contract and, therefore, the learned Court below has rightly decreed the plaintiff’s suit. So far payment of Rs.60,000/- is concerned, the learned counsel submitted that he will abide by the finding of learned court below which shows the bonafide of the plaintiff respondent. (10) In view of the above rival contentions of the parties, the points arises for consideration is as to whether the plaintiff- respondent is entitled to a decree for specific performance of contract as prayed for by her and whether the impugned Judgment and Decree are sustainable in the eye of law. 6 F I N D I N G S (11) According to the plaintiff’s case, the total consideration amount was Rs.2,90,000/- and out of that she has paid Rs.1,01,051/- as advance and the remaining consideration was Rs.1,80,949/-. Here the execution of the agreement dated 17.09.85 is admitted. The dispute between the parties is with regard to payment of advance consideration amount. According to the defendant only Rs.60,000/- was paid by the plaintiff as advance. The learned Court below found the case of the defendant to be true. In other words, the case of the plaintiff regarding payment of Rs.1,01,051/- has been disbelieved. Therefore, the learned trial Court has directed the plaintiff to pay balance consideration of Rs.2,30,000/- to the defendant. It may be mentioned here that there is no cross-objection filed by the plaintiff-respondent. The learned counsel for the respondent submitted that without filing cross-objection, this finding can be challenged by the plaintiff-respondents. On the contrary according to the leaned counsel for the appellant, this is not a mere finding but is a part decree. The respondent, therefore, cannot challenge this part decree without filing any cross-objection. (12) Without going to the merit of the submissions, I proceed to decide here the fact regarding payment of advance amount on the basis of evidences available on record. (13) Exhibit 1 is the first deed of agreement dated 17.09.1985. The consideration amount is Rs.2,90,000/-. Rs.50,000/- was paid as advance and the deed mentions that 7 remaining Rs.2,40,000/- was to be paid at the time of registration of the sale deed which was to be done within 17.12.1985. It appears that this date was extended by Exhibit ‘2’ which is agreement dated 07.12.1985. In this agreement, there is nothing to show that any amount was paid. The date has been extended by this agreement to 05.03.1986 within which the sale deed was to be executed and registered. Exhibit ‘3’ is another deed dated 03.03.1986 by which the last date for execution and registration was extended to 29.04.1986. In this agreement, it is mentioned that again Rs.10,000/- was paid towards consideration to the defendant-appellant. From these 3 documents, it appears that the plaintiff has paid Rs.60,000/- to the defendant. The defendant also admitted this fact of receipt of Rs.60,000/- only. So far the payment of rest Rs.1,051/- as shagun and Rs.40,000/- as advance is concerned there is no documentary evidence in support of this fact. The plaintiff examined as P.W. 9 in her evidence has stated that at the time of finalization Rs.1051/- was paid and thereafter Rs.50,000/- was paid as advance at the time of execution of the deed of agreement on 17.09.1985. Time was extended up to 29.04.86 and in the meantime, they have paid money two times. She has not specified as to what amount was paid. She has also stated that money was paid for purchasing stamp. Regarding amount for purchase of stamp also, nothing has been stated by her. P.W.8 is the husband of the plaintiff has stated that on the date of finalization Rs.1051/- was paid and on 17.09.1985 Rs.50,000/- was paid as advance. He has also stated that when the date was 8 extended up to 29.04.86, he paid Rs.10,000/-. He has further stated that thereafter Rs.15,000/- was paid for purchasing stamp and again Rs.40,000/- towards balance consideration amount. (14) Except this statement by this witness, no documentary evidence is their in support of his statement. When Rs.10,000/- was paid, it was mentioned in the third agreement. But when Rs.40,000/- and Rs.15,000/- was paid, it was not mentioned anywhere, no receipt was also taken by the plaintiff. Therefore, mere oral evidence is not reliable. It is not expected that the parties who executed agreement whenever time was extended will not obtain any money receipt after paying such huge amount. In my opinion, therefore, the payment of the plaintiff regarding Rs.10,1,051/- cannot be relied upon. There is no reliable evidence in support of the case of the plaintiff that subsequently Rs.40,000/- was paid towards consideration amount and Rs.15,000/- towards purchase of stamp and Rs.1051/- as shagun. So far payment of Rs.1,5000/- for purchase of stamp is concerned, it appears that there is no such pleading in the plaint. I, therefore, find that the plaintiff-respondent has failed to prove that on finalization Rs.1051/- was paid and subsequently Rs.40,000/- was paid towards consideration amount. It may be mentioned here that the date was extended on 03.03.1986 by Exhibit ‘3’ in which it is recited that Rs.10,000/- was paid. Thereafter on which date Rs.40,000/- was paid and on which date Rs.15,000/- was paid has not been mentioned. Therefore, the plaintiff’s case on this point is unreliable. Accordingly, the finding of the learned Court below on this point is 9 hereby confirmed. (15)Now, let us consider the case of the plaintiff regarding readiness and willingness. No doubt, in the plaint, there are pleading according to Section 16 (C) of the Specific Relief Act that the plaintiff was all along ready and willing and is still ready and willing to perform her part of the contract. The learned counsel for the plaintiff-respondent relied upon decision (i) A.I.R. 2005 (S.C.) 3503 (Aniglase Yohannan Vs. Ramlatha & Ors.) and (ii) A.I.R. 2006 (S.C.)2172 (Mostt. Ugani Vs. Rameshwar Das) and submitted that the plaintiff has clearly averred in the plaint regarding her willingness and readiness and has also adduced evidence. From perusal of the said decisions, it appears that their Lordships have held in those decisions that the basic principle behind S.16 (C) read with Expln (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. 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 manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief. (16) Therefore, according to their Lordships, the plaintiff has to prove that his conduct has been blemishless throughout. In other words, merely on the basis of pleading, no relief can be granted to the plaintiff. It is well known that the pleading itself is not the proved of the fact. The plaintiff is required to lead evidence 10 to prove the fact. No doubt, there is pleading in the present case that the plaintiff was all along ready and willing and is still ready and willing but the fact shows that she was not ready and willing to pay Rs.2,30,000/- because according to the plaintiff’s case, balance consideration amount is Rs.1,88,949/-. We have already found above that the plaintiff has failed to prove payment of Rs.1,01,051/-. (17) Now, therefore, she was all along ready to pay Rs.1,88,949/- only and not Rs.2,30,000/-. In other words, the plaintiff approached the Court with unclean hand. (18) Exhibit ‘A/1’ is a letter dated 21.04.86 written by the defendant to the plaintiff to pay Rs.2,30,000/- and got the sale deed executed within 29.04.86 and likewise Exhibit ‘A’ is the Advocate notice dated 11.04.86 requesting the plaintiff to pay Rs.2,30,000/- and got the sale deed executed and registered within 29.04.1986. The Exhibit ‘C’ series are the acknowledgment and postal receipts which shows that the notices were received by the plaintiff. Moreover there is no denial in the evidence by the plaintiff and her husband. On the contrary there is nothing on record to show that the plaintiff ever offered the balance consideration amount of Rs.2,30,000/-. Therefore, at least the plaintiff was never ready and willing to pay the difference of consideration of Rs.41,051/-. From perusal of the impugned Judgment, it appears that the learned Court below proceeded to decide as to whether the defendant was ready and willing to perform her part of the contract and observed that the defendant has not come to the Court to say 11 that she is still ready to perform her part of the contract rather her husband has emphatically denied that he is not ready to perform the contract now. In my opinion, instead of finding as to whether the plaintiff was ready and willing to perform her part of the contract as pleaded by her, the learned Court below placed onus upon the defendant to prove performance of her part of the contract. In my opinion, this is wrong approach. The learned Court below also found that certainly some more amount has been claimed by the plaintiff to have paid to the defendant but only on this ground, it cannot be inferred that the plaintiff has not come with clean hand. The observation of the learned Court below on this ground is not tenable. Since the case of the plaintiff regarding more payment then Rs.60,000/- has been disbelieved impliedly, it means that his intention and conduct was not clean with respect to that extent. In the case of Lourdu Mari David & Ors Vs. Loniz Chinnaya Arogiaswamy) reported in 1996 (5) S.C. Cases 589, their Lordships have held that it is settled law that the party who seeks to avail of the equitable jurisdiction of Court and specific performance being equitable relief must come to the Court with clean hands. In other words, the party who makes false allegations, or come with unclean hands is not entitled to the equitable relief. The Division Bench has pointed out in the Judgment, 3 grounds which disentitled the plaintiff to the equitable relief as he came with a positive case of incorrect and false facts as set out in paras 4 to 6. (19) In 2001 (6) S.C. Cases 600, A.C. Arulappan Vs. 12 Ahialya Naik (Smt.,) their Lordships have held that grant of specific performance is equitable relief. The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. (20) In A.I.R. 1993 (S.C. Cases) 1742, (Smt. Chandrani Vs. Smt. Kamal Rani, their Lordships at paragraph 16 considering the fact of the case and held that excepting mere assertion of readiness and willingness, it was not followed by conduct of the plaintiff. In the present case also except the assertion regarding readiness and willingness, there is nothing on record about the conduct of the plaintiff. Moreover, the plaintiff was found not ready till the Judgment and Decree to pay Rs.2,30,000/-. (21) In view of the above facts and circumstances as discussed, I do not agree with the finding of the learned Court below. In this case, the plaintiff approached the Court with unclean hand. Her part of the case pleaded has been disbelieved. Therefore, she is not entitled for the grant of discretionary relief. Accordingly the finding of the learned Court below on this point is hereby set aside. (22) In this case, it appears that the plaintiff-respondent has not prayed for alternative relief, i.e., has not prayed for refund of the advance amount. The learned counsel for the appellant submitted that there is forfeiture clause in the agreement and moreover, no prayer has been made for recovery of the amount, therefore, the plaintiff cannot be permitted to recover the amount of Rs.60,000/- from the defendant. So far this submission is 13 concerned, I do not agree with the learned counsel for the appellant. Since the appellant has admitted to have received the advance of Rs.60,000/-, it will be proper to grant relief of refund to the plaintiff. In my opinion, the Court has sufficient power to pass such order in exercise of power under Order 41 Rule 33 C.P.C. and also the Court can mould the decree under Order 7 Rule 7 C.P.C. In the ends of Justice, therefore, I hold that the plaintiff is entitled for recovery of Rs.60,000/- with simple interest at the rate of 6 per cent per annum from the date of impugned Judgment and Decree when it was found that only Rs.60,000/- was paid by the plaintiff. (23) In the result the Appeal is allowed. The impugned Judgment and decree are set aside. The plaintiff suit for specific performance of contract is dismissed. However, it is held that plaintiff is entitled to recovery Rs.60,000/- with simple interest at the rate of 6 % per annum from the date of impugned Judgment and Decree. In the facts and circumstances of the case, there shall be no order as to costs. Patna High Court, Patna Dated 19 th, August, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)