Ajit Singh and Others vs Baijnath Agrawal

Y.K. Shrivastava, J.—This appeal is directed against the judgment and decree dated 26-11-1992 passed by District Judge, Raigarh, in Civil Suit No. 19-A/87, whereby decreed the suit for refund of Rs. 24,000/- with interest instead of decreeing the suit for specific performance of the contract.

Appellants filed a suit for specific performance of the contract of sale dated 28-7-1984 stating that respondent entered into an agreement on 28-7-1984 with the appellants contracting to sell the suit property to the appellants for a consideration of Rs. 75,000/-. Out of the amount of consideration respondent had already received an amount of Rs. 12,000/- on 5-9-1983 and Rs. 6,000/- on 16-4-1984. Appellants paid Rs. 6,000/- to the respondent on 28-7-2004. Having received the amount of Rs. 24,000/- in all in part payment of the amount of consideration, respondent executed an agreement on 28-7-1984. Under this agreement respondent promised to sell the suit property to the appellants for a consideration of Rs. 75,000/-. Respondent further agreed that he would receive the balance of the consideration of Rs. 51,000/- from the appellants by 6-10-1984 and execute a sale deed transferring the suit property to the appellants. It was also agreed that the expenses in connection with the execution of sale deed viz., stamp duty, registration fee, document writer''s fee etc., shall be borne equally, i.e., 50% by the appellants and 50% by the respondent. Appellants were in possession of the suit property since before 28-7-1984 as they had taken it on a monthly rent of Rs. 150/-.

Appellants repeatedly asked the respondent to accept the balance of the consideration and execute the sale deed in their favour, but respondent always avoided the same. On 4-7-1987 respondent through his counsel served a notice on appellants, claiming arrears of rent and for eviction of the suit property. The said notice was replied and in reply, respondent was called upon to receive the balance and execute the registered sale deed. On 9-7-1987 appellants also sent a registered notice to respondent through their Counsel calling upon him to execute the registered sale deed in their favour after receiving the balance amount of Rs. 51,000/- within seven days from the date of receipt of the notice, but respondent avoided it. On 16-7-1987 appellants sent a telegraphic notice to respondent which was duly delivered at the respondent''s residence. Appellants were remained present on 17-7-1987 outside the office of Sub-Registrar, Raigarh and waited for respondent to come and execute the sale deed, but respondent did not turn up. Appellants were ready and willing and are still ready and willing to perform their part of agreement dated 28-7-1984. Respondent is bound under the agreement dated 28-7-1984 to execute the sale deed transferring his title in favour of the appellants and if for any reason the Court finds that the appellants are not entitled for the relief of specific performance then the appellants are entitled to refund of the amount of Rs. 24,000/- with interest @ 18% per annum which is the current rate of interest of advances made by Banks.

Respondent denied the plaint averment and pleaded in his written statement that the suit property is ancestral property and he is only entitled for 1/5th share. He never executed any agreement to sale in favour of the appellants. He is habitual to intoxication and it appears that the appellants with whom their relations were cordial, taking advantage of his weakness had got his signatures when he was under influence of intoxication. Appellants are in possession of the suit house as tenants, who have taken the house on rent at a rate of Rs. 500/- per month. They were served with a notice to vacate the suit house, therefore, to avoid it, have filed the suit. Neither the respondent had executed any agreement to sell the disputed property nor he alone is the owner of it. In absence of execution of sale deed no irreparable loss is to be caused to the appellants.

Learned Lower Court, after due appreciation of the evidence, held that the respondent entered into an agreement on 28-7-1984 to sell the suit house to the appellants for a consideration of Rs. 75,000/- and in part performance of the same he received Rs. 24,000/-, but the appellants were not ready and willing to perform their part from 1984 to 1987, therefore, vide impugned judgment and decree instead decreeing the suit for specific performance of contract of sale, decreed the suit for refund of Rs. 24,000/- with interest.

Learned Counsel for both the parties are heard and record of Lower Court perused.

Appellants in Para 13 of their plaint pleaded that the plaintiffs are all along ready and willing and are still willing to perform their part of the agreement dated 28-7-1984 and pay the balance of the consideration amount and bear 50% of the expenses required for execution and registration of the sale deed. Respondent at Para 13 of his written statement denied the averment and pleaded that--

^^�13� okni= dafMdk 13 ds dFku vlR; gS vr% vLohdkj gS] pwafd oknh ,oa izfroknh ds ek/; dksbZ lafonk oknxzLr edku ds fodz; ds laca/k esa dHkh Hkh ugha gqvk blfy;s oknh dh rRijrk dk dksbZ vkSfpR; ugha gS A**

So far as above pleading part is concerned, respondent has nowhere agreed that the appellants had ever asked him to execute the registered sale deed and accept the balance of the consideration amount.

To support the pleading that appellants were all along ready and willing to perform their part, Samir Jeet Singh (P.W. 2) has been examined by the appellants. Samir Jeet Singh in his statement deposed that in the month of July, 1984 Baijnath Agrawal came and asked for some amount. He said that without any writing he will not pay any amount, therefore, on 28-7-1984 Baijnath Agrawal delivered agreement (Ex. P-4) and they paid Rs. 6,000/-. After 6-10-1984, he many a times asked Baijnath Agrawal to take remaining amount of Rs. 51,000/- and execute the registered sale deed, but Baijnath Agrawal always replied in the manner that the suit house is in your possession and he will execute the registered sale deed. There is no evidence to show, on which date or month or year appellants had called on the respondent to execute the sale deed. There is also no evidence to show that all along since 6-10-1984 to 17-7-1987 a sum of Rs. 51,000/- remained in hand of the appellants. Neither they served any notice for execution of sale deed prior to receipt of notice served on them by respondent in July, 1987 nor made any effort to get recital of sale deed written on stamp paper.

Section 16(c) of the Specific Relief Act, 1963 and its explanation are reproduced below :

"16. Personal bars to relief.-- Specific performance of a contract can not be enforced in favour of a person--

(a) *** *** *** *** (b) *** *** *** *** (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 : For the purpose of Clause (c)--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court.

(ii) the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true consideration."

From the judgments rendered in Smt. Swarnam Ramachandran and Another Vs. Aravacode Chakungal Jayapalan, , P. D''Souza Vs. Shondrilo Naidu, , and His His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, , it is apparent that to enforce specific performance of contract to sell, readiness and willingness are essential ingredient and that can be inferred from the conduct of the attending circumstances.

As per plaint averment, agreement to sell was executed on 28-7-1984 and as per agreement the sale was to be completed by 6-10-1984 by respondent receiving the balance of the consideration of Rs. 51,000/-. Only when the respondent served a notice on appellants who are admittedly tenants of the suit house for eviction and arrears of rent vide notice dated 4-7-1987 thereafter on 9-7-1987 the appellants agitated to it and called the respondent to execute the sale deed and to receive the balance amount. Neither any specific averment unveiling the date, month or year when the appellants called on respondent to receive the amount and execute the sale deed has been made by the appellants, nor any evidence in specific term has been adduced by them. Therefore, it can be accepted that the appellants since the date of agreement, i.e., 28-7-1984 till receipt of notice dated 4-7-1987, never asked the respondent to receive the balance of the consideration of Rs. 51,000/- and to execute the registered sale deed. Even to establish that all along since 28-7-1984 to 4-7-1987 appellants were in possession of Rs. 51,000/- no substantial evidence has been adduced. To prove their willingness and readiness neither they made any effort to purchase stamps nor get the recital of sale written on the stamp paper. Even the statement of Samir Jeet Singh (P.W. 2) in Para 4 of his statement, did not say that on 28-7-1984 any agreement to sell the suit house took place. Therefore, no doubt, agreement (Ex. P-4) has been executed under the signature of respondent, but the said evidence only suggests that as a result of Rs. 24,000/-given to respondent, the said document has been obtained.

From the aforesaid discussions, it is apparent that the learned Trial Court after due appreciation of the evidence on record has held that the appellants were not ready and willing to perform their part of the contract, has not committed any error and as such, no interference is called for in this appeal.

In the result, the appeal has no force, hence it is dismissed with costs.

Decree be drawn accordingly.