Ghansiram Lahre vs Madhav Das Tandan and Another

Nawal Kishore Agarwal, J.—This is defendant''s first appeal u/s 96 of CPC against the judgment and decree dated 26-7-2007 passed in Civil Suit No. 18-A/2006. Facts of the case in brief are as under:--

i. On 25-9-2001 agreement of sale (Ex. P-1) was executed between plaintiff/appellant and defendant No. 1 with respect to 1.65 acres of land for a sale consideration of Rs. 7,25,000/-. Rs. 2,65,000/- was paid by the plaintiff as earnest money on various dates. Balance consideration amount was made payable between Dashahara and Diwali, 2001. Agreement shows revenue papers i.e. Bhu-adhikar-Rin Pustika and Khasra were handed over by defendant No. 1 to plaintiff.

ii. By sending various notices plaintiff asked defendant No. 1 for execution of sale deed in terms of the agreement. On defendant''s failure, plaintiff filed instant suit for specific performance of contract.

iii. Defendant No. 1 opposed the suit, denied execution of agreement of sale in plaintiff''s favour with regard to property described in the plaint map. According to defendant, agreement of sale (Ex. P-1) was executed in fact between Ramesh Lahre who is a Patwari and son of the plaintiff and defendant, who has not paid balance consideration amount in time and therefore, is not entitled for the relief of specific performance of contract.

iv. Learned trial Court on the basis of evidence led material placed and submissions made, rejected plaintiff''s prayer for specific performance of contract, granted decree for refund of earnest amount with interest at the rate of 90% from 25-9-2001 finding inter alia: plaintiff entered into agreement of sale with the defendant No. 1 for a sale consideration of Rs. 7,25,000/-, paid Rs. 2,65,000/- as earnest money, possession of the suit land was not transferred, plaintiff failed to aver and prove his readiness and willingness to perform his part of contract within the time specified.

Shri B.P. Sharma, learned counsel for the appellant would argue, learned trial Court has grossly erred in dismissing plaintiff''s suit so far as relief of specific performance of contract inter alia on the following ground:

i. It is well accepted principle that in the case of sale of immovable property, time is never regarded as essence of contract, in fact there is a presumption against time being essence of contract;

ii. Learned trial Court has grossly erred in holding, plaintiff failed to aver and prove that he has performed or has always been ready and willing to perform essential terms of the contract, which are to be performed by him;

iii. Unwillingness to perform his part of the agreement by defendant No. 1 in view of rise in price of property is not a ground for refusal to enforce the lawful agreement of sale;

iv. The basic principle behind Section 16(c) read with explanation (ii) of the Specific Reliefs Act, 1963 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.

v. Plaintiff is ready and willing to pay Rs. 10,00,000/- instead of Rs. 7,25,000/- as agreed between the parties looking to rise in price of property.

On the other hand, Shri A.N. Bhakta, learned counsel appearing for the defendant No. 1 would support the judgment and decree and would submit, plaintiff did not enter into witness box; utterly failed to aver and prove his readiness and willingness to perform his part of contract in terms of Section 16(c) of the Specific Reliefs Act, 1963 (for short, the Act); is insisting for execution of sale deed with regard to specific khasra number mentioned in the plaint map in violation of terms of the agreement, failed to pay balance consideration amount within the time stipulated; insisted only for execution of registered sale deed without paying balance consideration in terms of contract, also insisted for demarcation of the land in violation of the agreement and learned trial Court has rightly rejected plaintiff''s prayer for specific performance of contract.

We have heard learned counsel for the parties and perused the record of learned Court below.

Balance amount of consideration was not paid by the plaintiff in terms of agreement of sale (Ex. P-1) i.e. between Dashahara and Diwali, 2001; as per Para 22 of the statement of Ramesh Lahre (Ex. P-1) amount of earnest money was paid by him. He further deposed in para 24 of his statement, his father only can explain how he arranged amount of earnest money; his father was working as Rajmistri before 4-5 years. Admittedly, specific property described in the plaint map was not agreed to be sold to the plaintiff, there is also no condition in the agreement for payment of balance consideration amount at the time of execution of sale deed and requirement of demarcation of land before execution of sale deed. Plaintiff neither paid the balance consideration amount as per the agreement nor shown his intention for payment of consideration at any point of time, on the other hand, in violation of terms of agreement, he always insisted upon execution of sale deed of the land situated in front of Jodhapur School. Further from a bare perusal of the pleading it would be clear, averment with regard to readiness and willingness is not in conformity with the provisions contained in Section 16(c) of the Specific Reliefs Act. Statement of P.W. 1 Ramesh Lahre shows, plaintiff is not person of means, also not entered into witness box, Ramesh Lahre himself is not aware how his father has paid earnest money, therefore plaintiff''s readiness cannot be proved by P.W. 1 Ramesh Lahre.

The Supreme Court in case of Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., has held in para 25 of its judgment:

From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: (i) From the express terms of the contract; (ii) From the nature of the property; and (iii) From the surrounding circumstances, for example: the object of making the contract.

The Supreme Court in case of H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Others, , has held in para 13 and 14 of its judgment as under:

The basic principle behind Section 16(c) read with Explanation (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.

Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract....

The Supreme Court in case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, , has held power of attorney holder cannot depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross-examined. It is further observed that persons claiming share in property should have entered the witness box and discharged burden. The power of attorney holder cannot enter a witness box and depose instead of persons claiming such share.

The Supreme Court in case of Mayawanti Vs. Kaushalya Devi, , while interpreting provisions of Section 9 of the Act has held, the specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem, The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of Course, on the plaintiff. If the stipulations and terms are uncertain and the parties are not ad idem there can be no specific performance.

Applying the law laid down by the Supreme Court in the above referred cases in the facts and circumstances of the case, although it is true, time is not essence of contract in the facts and circumstances of the present case but it is also true, plaintiff utterly failed to aver and prove his readiness and willingness to perform his part of contract, also claiming relief with regard to specific property described in the plaint map which is not in conformity with the sale agreement inasmuch as the agreement of sale was entered into between the parties with regard to 1.65 acres of land out of 2.36 acres of land owned by the defendant and not with regard to any specific khasra number or specific portion of the property.

In the light of above discussion, in our considered opinion, equity does not lie in plaintiffs favour and learned trial court has rightly rejected plaintiff''s prayer for specific performance of contract and instead granted decree of refund of earnest money.

Therefore, the appeal fails and is dismissed. No order as to costs.