IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR FIRST APPEAL N0. /'! ^- Z2007 'jus'ainn Hias^f iSVSisjyH UgiSii r APP^LI-ANT DEFENDANTNO.l RESPONDENT PLAINTIFF RESPONDENT DEFENDANTN0.2 RESPONDENT DEFENDANT N0.3 2. ^ ^ B.K. Malik, Aged about 54 years, S/o Late Hari Krishna Malik, R/o 15-Motilal Nehru Nagar (Oldj Bhilai, Tahsil-Bhilai, District-Durg (C.G.) Narendra Singh Airen Aged about 54 years, S/o Late Ranjeet Singh Airen, R/o-42/8, Nehru Nagar (East) Bhilai, Tahsil-Bhilai, District-Durg (C.G.) Commissioner, Municipal Corporation, Bhilai, District-Durg (C.G.) Property Tax Offlcer, Municipal Corporation, Bhilai, District-Durg (C.G.) Civil Suit Valued at Rs. 4.80.600.00 f'-T'^Court fee affixed at Rs. l^te^ FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CFVIL PROCEDURE, 1908 B)' & :ed 2th ied 1s: :EE AP^ HIGH COURT OF CHHATTISGARH :_^ILASPUR F, A. No. 105 of 2007 Appellant B. K. Malik Versus Respondents Narendra Singh Airen 8s others And F.A. No. 117 of 2007 Appellant B. K. Malik Versus Respondents Narendra Singh Airen 85 others APPEAL_UND_ER SECTIQN 96 QFTHECODE QF CIVIL PROCEDURE, 1908 ..,A DB: Hon'ble Shri Justice I. M. Quddusi 8s Hon'ble Shri Justice Prashant Kumar Mishra, JJ Shri Ravish Chandra Agarwal, Senior Advocate with Shri Ashish Shrivastava, Advocate for the appellant. Shri Anad Shukla and Shri Parag Kotecha, Advocates for the respondent No. 1. Shri H. B. Agarwal, Senior Advocate with Ms Meera Jaiswal, Advocate for the respondents No.2 85 3. JUDGMSNT SG ORDER (Oral) ( Passed on this 25U1 day of March, 2011 ) Per I. M. Quddusi J. 1. The instant two appeals arise from the common judgment and decree dated 19.7.2007, passed by the 10th Additional District Judge (F.T.C.) Durg in Civil Suit Nos. 26-A/2007 and 25-A/2007. Since the facts situation and the question of law involved in both the appeals are one and the same, both the appeals are being decided by this cominon judgment and order. 2. The brief facts in nutshell are that the plaintiff/vendor (Narendra Singh Airen) filed two suits (Civil Suit No. 26-A/2007 and 25-A/2007) for specific performance of contract and permanent injunction against the defendant No.l/Vendee. The case of the plaintiff/vendor was that two agreements (Ex. P/1 and P/2) were entered into between fhe plaintiff - &» and the defendant No.l on 11.3.1997 for sale of plot No. 6, block- 22, area 18x30 meter = 540 square meter and plot No. 5 block - 42 area 18x30 meter = 540 square meter, which are situated at Motilal Nehru Nagar(East),Bhilai. Prior to it both the parties arrived at an oral agreement on 18.12.1996 for sale of the plots and fhe defendantNo.l received Rs. 3,50,000/- as advance for ea.ch plot and rest ofthe sum of Rs. 1,30,000/- for each plots, to be paid at the time of registration. 3. The plaintiff and defendsint No.l submitted an application on 3.4.1997 ^fi to the Special Area Development Authority (SADA), Bhilai for transfer of the plots in dispute in the name of plaintiff by way of sale. Accordingly, in the daily newspaper edition dated 24.4.1997 a nodce was published inviting objections, if any, from the interested persons, for transfer of plots. Since none of the objections were received wifhin 30 days, vide menio'Ex. P/3 to P/6 permission was issued by the SADA subject to deposit ofRs. 48,000/- towards mutation fees for each plots, 4. It is alleged that as the defendant No.l was not ready to execute the sale deed in accordance with the agreeraent to sale and was not paying any heed on the request of the plaintiff, even after obtaining part payment of consideration, the plaintiff issued a nodce on 16.9.1999 (Ex. P/21 and P/22) and defendant No.l issued notice fo the plaintiffon 1.10.1999 (Ex:P/24) which was replied by the plaintiff on 15.10.1999 (Ex.P/23). After dissolutioh of SADA it was inerged with the Municipal Corporation, Bhilai and on 24.3.2001 (Ex.P/25) the defendant No.3 issued a notice to the plaintiff as well as defendant No.l to execute the sale deed else the pern'iission issued earlier by the SADA will be cancelled. 5. It is further alleged that before executing the sale deed it was the obligation on the part of the defendant No. 1 to pay the l^ <^- & 7. £ mutation/transfer fees and lease amount (bhoo bhatak) but this amount was paid by the plaintiff. At the last, the plaintiff sent a registered notice on 16.9.1999 to the defendant No.l and on his deraand. the plaintiff also sent the copy of the agreeraent entered into between them. Even then, when the defendant No.l did not ready to execute the registered sale deed in favour of the plaintiff, the plaintiff filed both the suits for specific performance of the contract and permanent injunction. The trial Court decreed both the suits vide impugned judgaient and decree dated 19.7.2007 with the direction that the defendant No.i shall execute the registered sale deed of both the plots in dispute within two months after taking rest of the consideration amount of Rs. 1,3Q,000/- for each of the plots (total Rs. 2,60,000/), else the plaindff would be entitied to execute the registered sale deed through the Court. The defendant No. 1 shall not alienate both the plots in dispute to any other person. The defendants No. 2 and 3 shall not cancel the permission for ta-ansfer of both the plots. The plaintiff shall bear the cost of litigation of plaintiff. Before proceeding further; it would be profitable to peruse the contents of paragraphs 10 and 18 of both the plaints. In Civil Suit No. 17-A/2001 in para 10 it is mentioned that the plaintiff has paid and deposited fees under various heads (advajice amount, publication fees, lease rent,rnutadon fees and transfer fees) the total of which comes to Rs. 4,14,703/- and in para 18 it is mentioned that the plaintiff is required to pay only the remainder/balance amount of Rs. 65,227/- ( 4,14,703 + 65,227 = 4,79,930/-). Similarly, in Civil Suit No. 16-A/2001 in para 10 it is mentioned that the plaintiff has paid and deposited Rs. 4,01,703/- under various heads and in para 18 it is A'^te>,1' r^, ^. l&ae^'^' '•%!>;' ^^ef ^ nientioned that the plaintiff is required to pay only the remainder/balance amount of Rs. 78,297/- ( 4,01,703 + 78,279 = 4,79,982/-). 8 . Similariy, it would also be profitable to peruse paragraphs 11, 18 and 20 of the written statements (W.S.) filed by the defendant No.l. In paragraph. 11 the defendant No.l has stated that .the contents of paragraph 11 of the plaint are emphatically denied that it was the responsibility of the defendant to pay the registration fees of the sale *^ deed and mutation fees. In fact above fees are to be paid by the plaintiff himself. In paragraph 18 it is mentioned that the contents ofparagraph 18 of the plaint are denied being completely false. In this regard, the real fact is that the defendant is entitled to get a sum of Rs. 1,30,000/- ( One Lac Thirty Thousand Rupees) from the plaintiff towards remainder of the plof, the plaintiff has failed to pay the same in accordance with the terms of payment within stipulated period. As the agreement executed between the parties has come to an end therefore the plaindff is not entitled to get done the registration and execution of the sale deed. In paragraph 20 it is stated that the contents of the plaint made in paragraph 20 are denied as they are totally false. It is also stated that the plaindff has no right to get the registration and execution of the sale deed in accordance with the agreement. (11.VS f^, ^T^—V^in'fsvi 11 'rf VS WV W ^ ^17 f f^ cll^ilW ^S^S ^ fSt^SJ /^cte' 9^ V'uft^-y ^ •IIHM'IVI gc^ ^t SKIVrft ^t fuf^^l'f) ^W yf^TTfl cfr f 1 ^T 77?Ejr ^ ^J^rf^i^Tf VS ^ f^ 'iiRitf! w yrfTT-T, m^t ^t ^t rf^rr ^ / is.v? , ?7?-i?? c^TS^/ is ^ vsi^ 3777W gN' 7?' ^77 ^ / ?V ??W ^ iJlwRchdl V? f f^ ?7f uRlcll^] ^)- 3pfr 97^ 7?' 1.30.000/- <W^ (?^ cTTS' rf???' ?W7 ^T^ ^W17®'^ ^?? '? 7?' !?7Tor ^7;?7- ^T f, ?7c?f g^ 37^?77,' /^7(T 3?^E?' '? ^f^ ^ q7^' 37W77S/ ???' ^ / ^' 1JSWR[ ^ 'ne£{ /.)cy//3ri siyisr ?t JW ^ ?7^ 3{el cll^il^ I^Vg ^ 'ffSfST ^ ^BSiSMaQS^. ~"s ''I. "-^ %1 's s •h<- fi^t-V^ Fl^lK^ ^ Tfuf)wS''i^7Ft ^T Sf/^cf^t ^f ^ 1 20.VS f^, 979-17? ^f^T 20 ^ ^ST? y"/ri<V/ 37Wc?' ??•! ^ ^N ^ I 777S7' fr vs vft ^sf-r ^ ^ ?T^' ^t vf^r ^ 3gW77 f^V-IW Pl^lRd ^f VSf^ ^^ ^r ^ 3riS[^R ^f % 1) 9. It is well settled that in a contract or agreement 'readiness' and 'willingness cannot be read independently and in the case on hand the plaintiffwas disputing the balance amount mentioned in the agreement to sale which was Rs. 1,30,000/- for each of the plots. A perusal of paragraph No.3 of both the agreements to sale (Ex. P/ 1 and P/2) demonstrates that a sum of Rs. 3,50,OOO/- was paid towards advance and a sum of Rs. 1,30,000-/- was the remainder for each of the plots (Rs. 3,50,000 + 1,30,000 = 4,80,000/- each). 10. The issue No.3, framed by the trial Court was whether the defendant No.l was liable to pay the transfer fees and lease rent till the date of execution of the sale deed (3. W7 /^? /^A? ^ P/'^i^'i ^ v'ufl^'/ /^77^' ^g' •1IHI'd'iul gc^ ?? ^^7 /^cte KW^ ^W W ij-W^^ c/ff 3T^T^rft ^t ful^^l-!l 1 ^ft f ?]. This issue has been decided by the Trial Court in favour of the defendant No.l/present appellant. Therefore, the specifics of the amounts, as have been mentioned in para 10 of the plaint, were the liability of the plaintiff i.e. Rs. 64,703/- and Rs. 5l,703/-, respectively. According to issue No.3 it was responsibility of the plaintiff/respondent No.l herein this appeal, that remaining amount i.e. Rs. 1,30,000/- was to be paid by the plaintiff as alleged in the plaint but he expressed willingness to pay the balance amount of Rs. 65,227/- and Rs. 78,297/-, respectively, only and not Rs. 1,30,000/- for each plots, whereas, as per agreement, the balance amount was Rs. 1,30,000/- for each plots. Therefore, the trial Court committed an error in holding that the plaintiff was ready and willing to pay the balance amount of sale consideration i.e. Rs. 1,30,000/- and this *>, >« ll^ finding, as we have discussed above and found, is perverse as in any way when in the plaint it has been alleged that the plaintiff is required to pay the balance amount of Rs. 65,227/- and Rs. 78,297/-, respectively, therefore, this cannot be held readiness and willingness of the plaintiff for payment for Rs. 1,30,000/-. Further, the trial Court directed the plaintiff to pay Rs. 1,30,000/- to the defendant No.l from which it is also clear that there was dispute regarding the payment of balance amount and hence it cannot be said that the plaintiffwas ready and willing to pay Rs. 1,30,000/- i.e. the amount mentioned in the agreement to sale as balance amount. In the case of Rain Kuniar Agarwal and another Vs. Thawar Das (dead) through Lrs.1 Hon'ble Supreme Court in para 7 and 8 held as under: "7. In our opinion, the judgment of the High Court suffers from serious infirmities. It also suffers froin the vice of exercise of such jurisdictipn as did not vest in the High Court under the law. Under Section 100 CPC (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves reappreciation of evidence. .A persons who falsely alleges to have paid Rs. 2000 and also attempts at proving the plea at the stage of the ta'ial cannot be said to have been ever ready and wiling to pay Rs. 7000 which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona fide but abandoned at or before the trial for inability to prove." "8. Plea under Section 53-A of the Transfer of Property Act raises a' mbced question of law an'd fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part ' (1997) 7SCC 303 of the contract is Qne of the essential ingredients of the plea of part-performance. Thawar Das having failed in proving such willingness protection to his possession could nof have been claimed by reference to Section 53-A of the Transfer of Property Act." 12. Hon'ble Supreme Court in the case of Panchugopal Barua and others Vs. Uinesh Chandra Goswami and others2 has held in paragraphs 8 and 9 as under : fc>. ^- ^ "8. Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise thari a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions......... " "9. In the case of.................................. Even after noticing that the appellant had specifically raised the defence both in the trial court and in the first appellate court that he had raised the construction as a prospective owner, the learned Single Judge went on to say that since the plaintiffs case in the plaint was that a licence had been granted to the appellant to raise the structure, relief coul^. be granted to the defendant on the plea raised by the plaintiff himself ignoring the stand of the defendant as the plaintiff had to succeed or fail on the strength ofhis own case and not on the weakness of the defence. There may not be any quarrel with the abstract proposition of law that a plaintiff can succeed on the strength of his own case and not on the weakness of the defence but what the High Court seems to have completely overlooked is that the plaintiffs case specifically was that he had allowed the defendant to make permissive use of the suit land as a licensee and had perraitted the raising of temporaiy structure thereon for a period of two years beginning 1-6-1963 and that the defendant acting on the licence had'raised a temporary structure on the suit land and contrary to the understanding had refused to hand .back the possession of the suit land after the expiry of (1997) 4 SCC 713 ^/^^.;A.. '""^; t'U' "^ ' 'l ,f ^. .-.'.... '^. l"?""tj two years. This plea of the plaintiff had to be taken as a whole and could not be dissected for the purpose of granting relief to the respondent by accepting a part of it. ......................" 13. The above decision has been followed by Hon'ble Supreme Court in the case of Kshitish Chandra Purkait Vs. Santosh Kuniar Purkait and others3. 14. Hon'ble Supreme Court in Ouseph Varghese Vs. Joseph Aley and Others4 taking into account the fact and evidence on record that the '''' agreement pleaded by the defendant is wholly different froni that pleaded by the plaintiff, they do not refer to the same transaction and the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perforni the agreement pleaded in ,. ' the written statement, has held that "It is well settled that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perfbrm his part of the contract and in the absence of such an allegation the suit is not inaintainable." 15. Hon'ble Supreme Court in Man Kaur (dead) by Lrs Vs. Hartar Singh Sangha5 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 : "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 conimitted 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 3(1997)5'SCC438 41969 (2) SCC 539 s(2010) 1QSCC512 ^-.. £^ •^ 16. 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 withess 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 stafe of raind and conduct of the purchaser, as also his capacity and preparedness on the other. Or^e 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." The quesfion for consideration before us is whether the plaintiff was ready and willing to pay the remainder amount due, as per the agreement. Explanation (ii), Sub-clause (c) of Section 16 of the Specific ReliefAct, 1963 reads as under : "16. Personal bars to rellef. - Specific performance of a contract cannot be enforced in favour of a person- (c) who fails to a.ver and prove that he has performed or has always been ready and willing to perform the essential term.s 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 of clause (c) (ii) the plaintiff niust aver performance of, or readiness and willingness to perform, the contract according to its true coiistruction. " i 17. In view of the above quoted provisions of law the plaintiff had to show his willingness'and readiness to perforra the essential terms of the contract which are to be performed by him, other than terms the <1&\ Bi>"'s 10 performance of which has been prevented or waived by the defendant and the same should be according to its true construction. 18. In the instant case, the defendant had not prevented or waived off any performance to be done by the plaintiff, but the plaintiff, as alleged in the plaints that according to the contract Rs. 1,30,000/- was due which was to be paid at the time of registration and execution of the sale deed but the plaintiff has stated that he spent some amount i.e. Rs. 64,703/- and Rs. 51,703/- ( the amounts remaining after deduction .of > Rs. 1,30,000/ - each from Rs. 4,14,703 and Rs. 4,01,703/-, respectively, according to para 10 of each of the plaints) and was to pay the remainder i.e. Rs. 65,227/- and Rs. 78,297/-, respectively, (as mentioned in para 18 of each of the plaints), not Rs. 1,30,000/-, .each, as mentioned in both the agreements. As such, according to the plaintiff, the defendant should be deemed to have received these amounts of Rs. 65,227/- and Rs. 78,297/- out of the remainder of Rs. 1,30,OOO/- to be paid and therefore the plaintiff has mentioned in the plaint that only Rs. 65,227/- and Rs. 78,297/-, respectively, were due which was to be paid by hira at the time of registration and execution of the sale deed and he was ready and willing to pay these sum towards the reraainder. Therefore, it is clear from the contents of the plaint that the plaintiff was ready and willing to pay the reniainder i.e. Rs. 65,227/- and Rs. 78,297/-, respectively, and not Rs. 1,30,000/- but the learned Court below has rejected this plea and decided the issue No.3 to the effect that the expenses made by the plaintiff ( Rs. 64,703/- and Rs. 51,703/-, respectively) was the responsibility of the plaintiff and. not of the defendant No. 1. 19. In view of the above discussion, the plea of the respondent/plaintiff that the appellant/defendant has received Rs. 64,703/- and Rs. 51,703/-, 7':4>-1"**. ^s^^'^\ • '^ ^^y 11 '"'+ • »(•'..';•' 20. :.r~M '•^' 21, being his responsibility to pay, out of the remainder amount of Rs. 1,30,000/- to be paid at the time of registration and execution of sale deed was wrong and since the plaintiff has alleged in his plaint that he was ready and willing to pay the remainder i.e. Rs. 65,227/- and Rs. 78,297/-, respectively, cannot be said to be readiness and willingness of the plaintiff to pay the remainder of Rs. 1,30,OOO/- for each plots, which was the perfonnance of the essential terms of the contract according to its true construction. In view of the provisions of Section 16 of the Act, 1963, quoted above, speci&c performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perforra the essential tern-is of the contract according to its true construcdon, the agreements/contracts in question cannot be enforced. Therefore, when the plaintiff hiraself has not stated that he was ready and willing to perform the essential terras of the contract i.e. to pay Rs. 1,30,OOO/- for each.plots, at the time of registration and execution of the sale deed, the trial Court could not have directed the defendant/appellant to receive Rs. 1,30,000/- i.e. remainder in accordance with the agreements to sale and to execute the sale deed within two months, which is an indirect direction to the plaintiff/respondent to pay Rs. 1,30,000/-, which he was not ready and willing to pay, as already diseussed above, and was willing to pay only Rs. 65,227/- and Rs. 78,297/-, respectively, the remainder of Rs. 1,30,000/- after making the deductions ofthe expenses incurred by him to the tune ofRs. 64,703/- and Rs. 51,703/-. In view of the above we are of the opinion that the trial Court has coinraitted an error in decreeing both the suits with a direction that the ll^4 \ys,^. ia fSS- -''^ S0»«^it!g '^ . '-^ '•'l.-3'^f 22. 23. 24. ^. -»^ Thakur 12 appellant/defendant shall execute the sale deed in favour of the plaintiff/respondent No.l aftertaking Rs. 1,30,000/- each. For the above reasons, the impugned judgment and decree passed in both the suits is set aside. However, it is directed that the appellant/defendant No.l shall refund the amount of Rs. 3,50,000/- in each of the suits, which was received by him , as part of the consideration, to the plaintiff along with simple interest at the rate of 8% per annum from the date of the receipt of the said amount till its refund is made. Both the appeals are allowed accordingly subject to refund of the amount already received as a part df the sale consideration, as mentioned above. No order as to costs. At this stage, leamed counsel appearing for the plaintiff/respondent No.l relying on a decision of Hon'ble Supreme Court in Laxman Tatyaba Kankate BB Anr. V. Smt. Taramati Harishchandra Dhatrak6 states that the plaintiff may be permitted to offer some more money and the defendant No.l may be directed to accept the same and execute the sale deed. Having regard to the facts situation and the legal position, we are of the considered opinion that it may not be appropriate for this Court to express our view or obsei've anything in regard to the prayer inade on behalf of the plaintiff/respondent No.l. However,