Dharambir Prasad vs Devendar Gope And Others

Heard the learned counsel for the appellants and learned counsel for the Respondent.

The instant First Appeal has been filed on behalf of the appellant against the judgment dated 28-4-2005 and decree dated 16-5-2005 passed by Sri

Shiv Pujan Tiwary, Subordinate Judge-II in Title Suit No. 20 of 1996 by which judgment the suit filed by the plaintiff-appellant for specific

performance of the contract dated 10-1-1996 was dismissed on contest with cost. It is submitted by learned counsel for the appellant that the learned

trial Court has committed an error of law and fact in giving a finding while deciding issue No. 4 that the time was the essence of contract and since,

the plaintiff failed to deposit the money as per the contract of sale, hence as per the contract they have lost the right to get the sale-deed executed and

have forfeited their earnest money. It is submitted that the plaintiff has proved by its documents that he was always ready and willing to perform his

part of the contract and it is the defendant-respondent, who have failed in keeping their promise. Learned counsel for the plaintiff has relied upon the

judgment of the Supreme Court reported in “(2000) 6 SCC 420 : AIR 2000 SC 2408 in the case of Motilal Jainâ€, “where it has been settled

that the time is generally not the essence of contract in sale and there is no delay in asking for execution of sale even after 9 monthsâ€. He also relied

upon a judgment in a case reported in “(2008) 4 SCC 464 : AIR 2008 SC 1205 in the case of Balasaheb Dayandeo Naik v. Appasaheb Datatraya

Pawarâ€​.

On the other hand, learned counsel for the respondent-Defendant has submitted that from the bare reading of the agreement, it will show that for

his personal necessity the Defendant had entered into the agreement to sell his land for the marriage of his daughter and that his why it was agreed

between the parties that the sale-deed is to be executed by 10-4-1996 on payment of Rs. 3.72,000/- and since, in spite of demand, the plaintiff failed to

deposit the money and get the sale executed, he has lost the right to get back the earnest money and the trial Court rightly dismissed the suit. He has

relied upon the judgment of the full Court of the Supreme Court reported in “(1993) 1 SCC 519 : AIR 1993 SC 1742 in the case of Chand Rani v.

Kamal Rani†followed by the judgment of the Supreme Court reported in 2009 AIR SCW 7144 : (2010 (2) AIR Jhar R 27) in the case of A.K.

Lakshmipati (D) v. Rai Sahe Pannalal H. Lahoti Charitable Trust

After hearing both the parties and after going through the evidences on record, I find that the plaintiff-appellant case in the plaint was that the

Defendant are the owner and in possession of the suit property i.e. schedule A of the plaint. The defendants were in urgent need of financial

assistance, therefore, they entered into an agreement of sale with the plaintiff to sell the suit property on payment of sum of Rs. 4,22,000/- under an

agreement dated 10-1-1996 which was duly admitted by Notary public. It was agreed between the parties that Rs. 50,000/- will be paid as the earnest

money by the plaintiff at the time of execution of agreement of sale and balance amount will be paid on execution of the deed. The plaintiff had paid

Rs. 50,000/- against grant of receipt. It was stipulated in the agreement that the sale will be made before 10-4-1996 by payment of balance amount of

Rs. 3,72,000/-. It is submitted by the plaintiff in the plaint that between 11-1-1996 to 10-4-1996, the plaintiff approached several times to the defendant

and asked them to execute the sale-deed with respect to the suit property in favour of the plaintiff, but the defendants evaded the execution of the

sale-deed on one or other pretext. The plaintiff then sent a registered notice dated 14-2-1996 through letter under registered cover mentioning therein

to execute registered sale-deed after receiving the same. Defendants assured that the same will be executed within a fortnight. The aforesaid notice

as per the plaint was sent on 22-2-1996 by one Baldeo Prasad from Chatra Post Office. Thereafter, plaintiff again under certificate of posting dated

29-3-1996 sent another notice, but no reply was received by the plaintiff from the Defendant. The plaintiff submitted that they were always ready and

willing to perform his part of the contract and purchase the defendant's land. When the plaintiff heard that the defendant is going to sell the suit

property to some other person, subsequently, plaintiff received notice dated 17-6-1996 sent by the defendant through his letter which was replied by

the plaintiff through registered letter dated 22-6-1996. It is submitted that since, finally defendant refused to execute the sale-deed on 10-4-1996,

through the advice of his lawyer, he filed suit for specific performance.

In response to the notice, defendant appeared in the suit and filed their written statement denying that the plaintiff was ready and willing to perform

his part of the contract within stipulated time i.e. by 10-4-1996. The defendant has submitted that they approached the plaintiff several times and

demanded payment of the money as they were ready to execute the sale-deed, but the plaintiff was not ready with his money. The defendant denied

that they received any registered notice dated 14-2-1996 by the plaintiff who requested to execute the sale-deed after receiving the balance amount of

consideration. The defendant also stated in their written statement that the defendant were in need of money for settlement of marriage of their

daughter Kumari Nirmala and hence they entered into agreement of the sale with the plaintiff. It was agreed that the plaintiff will get the sale-deed

executed by 10-4-1996. It was further agreed that if the plaintiff fails to comply to perform his part of contract within stipulated period i.e. till 10-4-

1996 then the entire earnest money will be forfeited and the plaintiff will not be allowed to recover the same. It was further agreed between the

parties that if the defendant will refuse the sale-deed, the plaintiff will be entitled to take legal action against the Defendant subject to the payment of

the remaining amount in the treasury. The defendant asserted that they approached several times to the plaintiff and asked him to deposit the balance

consideration money of Rs. 3,72,000/-, but he did not deposit the same as the defendant was ready to execute the sale-deed with respect to the said

property in favour of the plaintiff. The defendant asserted that they sent a notice dated 25-3-1996 requesting the plaintiff to perform his part of the

contract according to the agreement by 10-1-1996, but the plaintiff failed to comply the same. The defendant again sent notice on 2-4-1996 under

certificate of posting and even after receipt of that notice, plaintiff took no action in terms of the agreement and the plaintiff failed to comply and

perform his part of the contract. The defendant was forced to take loan from his relatives with interest for marriage of his daughter and this

unexpected loan created heavy mental tension and anxiety and as per the stipulation of the agreement the defendant are entitled to retain Rs. 50,000/-.

They claimed that the plaintiff was never willing and ready to perform his part of the contract.

It appears that the trial Court on the basis of the pleadings of the parties framed the following 7 issues which are as follows:â€

i) Is the suit, as framed, maintainable?

ii) Whether the plaintiff has got cause of action and right to sue?

iii) Whether the suit is barred by law of limitation.

iv) Whether the time was the essence of the contract of sale?

v) Whether the plaintiff was ready and willing to perform the contract on his part?

vi) Whether the plaintiff is entitled to a decree for specific performance of contract?

vii) Whether the plaintiff is entitled to any other relief or reliefs?

The main issue was issue No. 4 and issue No. 5. The learned trial Court after discussing the evidences as led by the parties while deciding issue

No. 4 at para 8 came to a conclusive finding that the time was the essence of the contract and hence decided the issue against the plaintiff. The issue

No. 5 was also decided by the trial Court against the plaintiff and on the basis of these two findings being against the plaintiff the suit was finally

dismissed. The plaintiff has raised these two points in that agreement of sale which has been settled by various judgment of the Supreme Court that

time cannot be the essence of contract.

Now, let us first consider the agreement which was entered into between the parties on 10-1-1996. The agreement which was marked Ext. 4 in the

suit reads as under:â€

“The seller is in urgent need of money and hence he is willing to sell the property to the purchaser for a sum of Rs. 4,22,000/-. It was also stated

that earnest money, the seller has received is Rs. 50,000/- and the purchaser will pay the rest amount of Rs. 3,72,000/- by 10th April, 1996 and get the

sale-deed executed. If the seller or his heir will not execute the sale-deed of payment of Rs. 3,72,000/- then the purchaser will be at liberty to deposit

the money in the treasury and get the sale executed according to lawâ€​.

Thus, from the aforesaid agreement it is clear that there was a stipulation in the agreement to sale that the purchaser will deposit Rs. 3,72,000/- by

10th April, 1996 and get the sale executed otherwise he will deposit the same in the treasury and get the sale executed in accordance with law. The

plaintiff claimed that he was ready and willing to deposit the said amount by 10th April, 1996 and it was the defendant who evaded the execution of

sale-deed. In that respect, let us now examine the evidences as offered by the plaintiff.

The plaintiff has examined 8 witnesses who are:â€

P.W. 1 Dharamvir Prasad, the appellant

P.W. 2 Rajendra Prasad

P.W. 3 Rasul Mian

P.W. 4 Umesh Prasad

P.W. 5 Dukhi Prasad

P.W. 6 Nageshwar Thakur

P.W. 7 Nand Kishore Sahu

P.W. 8 Ram Swarath Singh

The plaintiff-appellant, P.W. 1. Dharamvir Prasad has stated that he entered into the agreement to purchase the suit property on 10-1-1996 for Rs.

4,22,000/- and he had made an advance earnest payment of Rs. 50,000. As per the agreement the sale-deed was to be executed within 3 months. He

has stated that on 5-2-1996 he had gone to the Defendant and asked him to execute the sale-deed and then he asked for one month time. He again

went to him on 12-2-1996 then again he gave a evasive reply and finally on 14-2-1996 he send the notice through his lawyer, but no reply was

received. Then he sent another notice under certificate of posting on 29-3-1996, but no reply was received. On 10-7-1996 he asked him to execute the

sale-deed, but defendant refused to execute the sale-deed. He then filed the suit. He has stated that it is not true that on 25-3-1996 notice was sent by

the defendant for depositing the money for execution of the sale-deed. He has stated that he was always ready and willing to perform his part of the

contract. In his cross-examination in para 12 he has stated that he cannot say as to from which post office the registered notice and under certificate

of posting was send on 14-2-1996 and 27-2-1996, since the same was sent by one Baldeo. There is no date in the receipt of the registry. It is to be

inquired from the post office. He has stated that on 10-7-1996 he had gone to the house of the defendant at Kisunpur for getting the sale deed

executed. In para 15 of his cross he has stated that he had gathered money by taking loan from his brother. He had only Rs. 1,20,000/- with him. The

rest of the money was with his brother and at present the money is with his brother. He has stated that he had not deposited the money before 10-4-

1996 in the treasury for purchase of the stamps and at the time of filing the suit he had only deposited the Court fee money and his suit was dismissed

for non-payment of Court fees. Subsequently, the suit was restored and Court fees was paid after one year and he denied that due to non providing of

money for getting the sale-deed executed within time, the defendant was put in great harassment and had to take loan for marriage of his daughter.

Thus from the evidences of the plaintiff it is clear it had no ready money for the sale-deed on the date fixed i.e. 10-4-1996 and he had not even

deposited money in the treasury for purchase of the stamp for execution of the sale-deed which is always purchased by the purchaser. The plaintiff

have submitted that as per the judgment of the Supreme Court, as relied by him, in a contract of sale of immovable property time cannot be the

essence of the contract.

The defendant has also examined 8 witnesses:â€

D.W. 1 Ram Prasad Sahu

D.W. 2 Binod Kumar

D.W. 3 Ramawtar Mistry

D.W. 4 Kamleshwar Gope

D.W. 5 Murari Prasad

D.W. 6 Ram Kumar Yadav

D.W. 7 Bihari Prasad Sinha

D.W. 8 is Devendra Gope, Defendant-respondent of the case (legal heir)

D.W. 9 Abdul Gaffar

The defendant, D.W. 8 has clearly stated that his father, Bigan Gope (original defendant) has entered into a contract for sale of property since, his

sister was to get married and hence it was stipulated that the sale-deed will be executed by 10-4-1996 on payment of balance amount of Rs. 3,72,000

and in spite of the money required, when the plaintiff-purchaser failed to deposit Rs. 3,72,000/- by 10-4-1996, his father had no option but to take loan

for the purpose of marriage on heavy interest-The defendant witnesses denied that any notice was received by them rather the defendant himself

gave a notice to the plaintiff on 17-6-1996 that they should deposit the sum of Rs. 3,72,000/- within 24 hours, otherwise they will forfeit the earnest

money also. The defendant has also relied upon the decision of the Supreme Court reported in 2009 AIR SCW 7144 : (2010 (2) AIR Jhar R 27) in the

case of A.K. Lakshmipaty v. Rai Sahab Pannalal†in that case also the Hon'ble Supreme Court has relied upon the full Court judgment of the

Supreme Court in the case of “Chand Rani v. Kamal Rani reported in (1993) 1 SCC 519 : AIR 1993 SC 1742†where in it was held that in case

of sale of immovable property there is no presumption as to the time of the essence of contract. The Hon'ble Supreme Court kept that principle in

mind after considering the agreement in that case giving a finding as under at para 17 of its judgment “we can very well see that time was

repeatedly mentioned to be of prime importance and it was stated quite clearly that under all circumstances, the appellants would have to definitely

deposit the balance amount of Rs. 5 lakhs by the date stipulated in the contract for sale. Hence, this submission advanced by Mr. Venugopal, that time

was not the essence of the contract cannot at all be accepted and therefore, we reject the sameâ€. In the instant case also I find from the pleadings

and evidences of the parties that the defendant had entered into an agreement to sell his property because he was urgently in need of money for

marriage of his daughter and hence the agreement clearly stipulated that the purchaser had to get sale executed by 10-1-1996 by deposit-ing of Rs.

3,22,000/-. Although the plaintiff-appellant stated in his evidence that he was ready and willing to deposit the amount for sale, but he himself admitted

in his cross-examination that by 10-1-1996 he had not purchased stamp or deposit money for purchase of stamp so that the sale-deed may be

executed by the Defendant. Moreover with regard to his readiness he also stated that he had only 1,20,000/- with him and for the rest amount of Rs.

3,52,000/- he is depending upon his brother, who had money but, definitely the said money was not with him and as such the claim of the plaintiff-

appellant that he was ready and willing to perform his part of the contract within time cannot be accepted.

It is admitted by the plaintiff that final ultimatum was given by the defendant by his letter dated 17th June, 1996 which was replied by the plaintiff

by his letter dated 22-6-1996 which has been proved in the trial as Ext. 2/A. In the final notice dated 17-6-1996 the defendant, through his letter, had

given the last chance stating that if he will not deposit Rs. 3,72,000/- within 24 hours then he will forfeit the earnest money. Although the said letter

has not been exhibited, but it was filed in the trial Court along with the marriage card etc. and the said letter has been acknowledged and accepted by

the plaintiff-appellant by his letter Ext. 2/A. As has been relied by learned counsel for the appellant, it was held in the case of Chand Rani v. Kamal

Rani ((1993) 1 SCC 519 : AIR 1993 SC 1742) (supra) full Court that “if the possession ultimately of the seller has been given for payment of the

balance amount then the best thing for the purchaser is to pay the amount and then take appropriate stepâ€. In the said case the appellant has failed to

do so and now he cannot be allowed to take advantage of his own mistake and pass the blame on the Defendant.

More so, the appellant has stated that they sent registered letter on 4-2-1996, but the same was not posted on 4-2-1996 as admitted by them in

their pleading itself. According to them it was send on 22-2-1996 by some Baldeo Prasad, but the receipt filed in the Court had no readable date on the

receipt nor the name of the post office. In his examination in chief he has stated that he cannot give the name as to from which post office the same

was posted. It is settled principle of law held in so many judgments including one reported in “1997 AIR SCW 956 in the case of K.S. Vidyanam v.

Vairavan†that in agreement of sale of immovable property the readiness and willingness of parties for performing their part of the contract is

essential. Thus, from the agreement and evidences as discussed above, I find that the plaintiff failed to comply with the time fixed in the agreement for

purchase of the property. Moreover, he although, claimed orally and by letters which were never received by the Defendants that he is ready and

willing, but from his conduct it appears that he had no ready money to offer to the defendant-seller, since as accepted by him he had only Rs.

1,20,000/- ready with him and for the rest Rs. 2,52,000/- he was dependent on his brother and the learned trial Court has rightly observed that when he

filed this suit he had no ready money even to pay the Court fees and suit was dismissed for non-payment of Court fees and subsequently, after the

restoration of the suit he paid the Court fee after one year.

In that view of the matter, I find that the plaintiff was not ready and willing to perform his part of contract and as such as per the agreement he

had rightly forfeited even the claim of earnest money. I find no merit in the appeal and I find no illegality and irregularity in the judgment and decree

passed by the trial Court.

In the result, the appeal is dismissed having no merit. However, no order of cost is passed on the appellant.

Appeal dismissed.