Bishahram Dhobi and Others vs Shivbagas Sahu

T.P. Sharma, J.—By this second appeal u/s 100 of the Code of Civil Procedure, 1908 (for short ''CPC''), the appellants have challenged the legality and propriety of the judgment and decree dated 31-3-95 passed by the 4th Additional District Judge, Raipur, in Civil Appeal No. 11-A/94, affirming the judgment and decree dated 26-7-93 passed by the 4th Civil Judge Class II, Raipur, in Civil Suit No. 234-A/92, whereby the decree for specific performance of contract has been granted against the appellants. Present second appeal was admitted on 30-11-95 on the following substantial questions of law:--

(1) Whether under the facts and in the circumstances of the case, Exh. P-6, the alleged agreement was rightly appreciated as an agreement for sale when the same contains a covenant that if the amount of loan is not repaid within the stipulated period, the defendant would be obliged to sell the property?

(2) Whether under the facts and in the circumstances of the case, the plaintiff was ready and willing to perform his part of the contract?

As per case of the respondent/plaintiff, appellant Nos. 1 to 4 have executed agreement dated 23-6-81 in favour of the respondent relating to the disputed property, i.e., Khasra No. 149/1 area 0.299 hectare situated at Village Bangoli, Tehsil and District Raipur and handed over the possession. Thereafter suit for specific performance of contract was filed on behalf of the respondent/plaintiff. By filing written statement the present appellants have denied the agreement and have specifically pleaded that appellant No. 5 has not executed any agreement. Alleged agreement was executed for loan. The present respondent was never ready and willing to perform his part of contract. After providing opportunity of hearing to the parties, the 4th Civil Judge Class II, Raipur has decreed the suit and same was affirmed by the Lower Appellate Court.

I have heard learned Counsel for the parties, perused the judgment and decree impugned, judgment and decree of the Trial Court and records of the Courts below.

Learned Counsel for the appellants vehemently argued that alleged agreement (Exh. P-6) is very specific and clear which reveals that it has not been executed by appellant No. 5 Thagia Bai, although she was co-owner of the suit property. Contains of the agreement reveals that it was conditional loan transaction and in case appellant Nos. 1 to 4 fail to repay the loan within the stipulated time then they were required to execute sale deed. Learned Counsel further argued that as per Para 6 of the plaint allegation the respondent himself has objected the contains of the agreement at the time of agreement that it was not a plain and simple agreement to sale but after advised by Mohanlal Verma that even after the stipulated time the appellants would not be in a position to repay the loan, he consented for such agreement which further proves that even within the knowledge of the respondent it was not agreement to sale. In absence of document of agreement to sale, both the Courts below have committed illegality by decreeing the suit.

Learned Counsel for the appellants placed reliance in the matter of S. Rangaraju Naidu Vs. S. Thiruvarakkarasu, in which the Supreme Court has held that in case of agreement by alleged transferer who was not in a position to pay the amount due, predominant object of the agreement was payment of dues with interest and not to sale the land.

On the other hand, learned Counsel for the respondent opposed the appeal and argued that the appellant have executed agreement to sale with clear understanding that it was agreement to sale, although there was condition. Learned Counsel further argued that the appellants have handed over the possession to the respondent 1983-84, therefore, there was no immediate need for filing suit for specific performance of contract.

Learned Counsel for the respondent placed reliance in the matter of J.P. Builders and Another Vs. A. Ramadas Rao and Another, in which the Supreme Court has held that contingent contract not always make the contract enforceable and doctrine of impossibility cannot be applied to assist a party unwilling to fulfil its obligation under the contract.

As per pleading, of the plaint, appellant Nos. 1 to 4 had executed agreement on 23-6-81. Alleged agreement reads as under:--

Part of Para 6 of the plaint filed by the respondent/plaintiff reads as under:--

Appellant No. 5 was also owner of the property, she has not executed Exh. P-6. Exh. P-6 clearly reveals that appellant Nos. 1 to 4 have executed the agreement and received consideration of Rs. 4150/-. It has also been mentioned in Exh. P-6 that if they will fail to repay the amount on or before "Magh Purnima", then they will execute the sale deed in favour of the respondent.

Definitely this condition was not in favour of the respondent and at the time of execution of such agreement it was objected by him, which he has specifically pleaded in Para 6 of his plaint, but he consented on the advise and assurance of Mohanlal Verma that even after receiving the crop the appellants would not be in a position to repay the loan which was due to Mohanlal, therefore, the respondent must be ready for such agreement. On the basis of aforesaid assurance of Mohanlal Verma, the respondent consented for such agreement.

This pleading and contains of Exh. P-6 alleged agreement clearly reveal that the present appellants were not in a position to pay the dues to Mohanlal Verma, therefore, they have executed the document (Exh. P-6) with a condition that if they will fail to pay the money within the stipulated time to the respondent, then they will execute the sale deed. Appellant Nos. 1 to 4 failed to repay Rs. 4150/- within the stipulated period, but neither they have executed sale deed nor the respondent has served notice to them or has shown his intention for serving notice. Even as per Exh. P-7 khasra panchshala, possession was not handed over to the respondent in the year 1981-82. Exh. P-7 reflects the possession of the respondent over the suit property in the year 1983-84.

Exh. P-6 and part of Para 6 of the plaint itself are sufficient to prove the fact that appellant Nos. 1 to 4 have not executed any agreement to sale, but it was purely loan transaction.

As held by the Supreme Court in the matter of J.P. Builders (supra), the alleged condition was not impossible for them to fulfil and in case of loan transaction the borrower is required to pay the loan. In the present case, the appellants have not taken any assistance of doctrine of impossibility. Facts of the case of J.P. Builders (supra), are distinguishable to that of the present case.

As held by the Supreme Court in the matter of S. Rangaraju Naidu (supra), predominant object of the agreement was payment of dues with interest and the alleged agreement was not agreement to sale.

While holding that Exh. P-6 as document of agreement to sale both the Courts below have committed illegality. The appellants were not under obligation to sell the property. Exh. P-7 khasra panchshala shows the possession of the respondent in the year 1983-84, after lapse of more than two years. After the stipulated time the respondent has not shown his readiness and willingness. If the contract was contingent contract and the appellants were under obligation to pay the amount or to execute the sale deed, then beneficiary/respondent was under obligation to show his readiness and willingness, but neither he has served any notice nor he has filed any civil suit till 1993.

Consequently, substantial questions of law Nos. 1 and 2 formulated for the decision of this appeal are decided as negative. On the basis of finding on substantial question of law, the appeal deserves to be allowed and it is hereby allowed. Judgment and decree passed by both the Courts below are hereby set aside and suit filed on behalf of the respondent/plaintiff is hereby dismissed.

Parties shall bear own cost.

Advocate fee as per schedule. Decree be drawn accordingly.