Ishwar Prasad Kashayap vs Vinod Bansod And Ors

Prashant Kumar Mishra, J

This is the defendant's First Appeal under Section 96 of the Code of Civil Procedure (in short ""the CPC"") against the judgment and decree passed

by the trial Court allowing the respondent/plaintiff's suit for specific performance. The suit property is a MIG house over 1500 sq. ft. of a plot at

Rajkishore Nagar, P.S. Sarkanda, Tehsil and District Bilaspur (CG).

The appellant/defendant being the owner of the property executed an agreement -Ex.P/1 in favour of the plaintiff on 5.6.2010 agreeing to sell the

property for a sum of Rs.9 lakhs, out of which, Rs.51,000/- was paid in advance by the respondent/plaintiff on the date of the agreement. According to

the respondent/plaintiff, no time limit was fixed for execution of the sale-deed as stipulation in the original agreement would only provide that the

registration shall be done as per consent and convenience of the parties. The plaintiff approached the Municipal Corporation, Bilaspur, for sanctioning

'No Objection Certificate' and 'Pre-registration Mutation' by paying Rs.36,930/- for mutation, Rs.1000/- towards publication fee and Rs.1323/- towards

premium. After obtaining the NOC, the plaintiff requested the defendant to execute the sale-deed but the defendant avoided on some pretext or the

other even though the plaintiff was always ready and willing to perform his part of the contract by paying the sale consideration. The plaintiff claimed

to have further paid an amount of Rs.75,000/- on a subsequent date, however, the defendant is making effort to sell the property to some other person.

The defendant resisted the suit on pleadings that after execution of the agreement on 5.6.2010, the plaintiff did not take steps for execution of the

sale-deed as he was running short of funds, therefore, another agreement was executed on 10.8.2011 stating that since the plaintiff has failed to get

executed the sale-deed by 31.7.2011, the first agreement of 5.6.2010 is cancelled. The subsequent agreement between the parties was executed on

10.8.2011. The defendant denied to have received the additional amount of Rs.75,000/-.

Both the parties have relied on terms of the first agreement and the legal notice. The defendant also relied on the second agreement dated

10.8.2011-Ex.D/1. To prove his case, the plaintiff examined himself as PW-1 and one Avinash Bapte Estate Officer of Municipal Corporation,

Bilaspur as PW-2, whereas, the defendant examined himself as DW-1 and his witness Dr. Hemant Kaushik as DW-2. The trial Court has found that

the plaintiff was always ready and willing to perform his part of the contract for execution of the sale-deed. However, his case of payment of

additional amount of Rs.75,000/- has not been found proved.

Assailing the impugned judgment and decree, Mr. Vinay Pandey, learned counsel for the appellant would refer to the subsequent agreement Ex.D/1

dated 10.8.2011, in which, the plaintiff has admitted that he is responsible for failure in execution of the sale-deed and that since he had failed to get

the sale-deed executed by 31.7.2011, the agreement (original) has got cancelled automatically. Thus, the appellant's argument is that the agreement

having already been cancelled, the same could not have been acted upon to pass decree for specific performance.

Mr. Suresh Verma, learned counsel for respondent No.1, would also refer to both the agreements to contend that the second agreement is not

proved to have been signed by the plaintiff, therefore, the handwriting over the said document is also not found proved and the suit has rightly been

dismissed.

The fulcrum of the petitioner's case before us is the subsequent agreement- Ex.D/1, therefore, we would first concentrate on the nature and

contents of the said document. This agreement dated 10.8.2011 is purportedly signed by both the parties as also by witnesses Dr. Hemant Kaushik

(DW-2) and one Chatur Singh Thakur. The tenor of the agreement is in the nature of a statement by the plaintiff/respondent admitting that in the first

agreement, six months time was fixed for execution of the sale- deed, during which, he could not arrange funds, therefore, he is responsible for the

delay. He also admits that on his request, the defendant allowed time till 31.7.2011, within which, he has to get executed the sale-deed, failing which,

the agreement would stand cancelled and the advance/earnest money shall stand forfeited and that he would have no objection to the defendant's

alienating the property or using the same according to his choice. The plaintiff has denied his signature over this document which has found favour

with the trial Court. Admittedly, the original document has not been produced before the trial Court and a xerox copy has been exhibited after seeking

permission under Section 65 of the Evidence Act for leading secondary evidence.

Be that as it may, we shall proceed as if the said document is in existence and thereafter, we will analyse as to the genuineness of the text over the

document.

The above agreement -Ex.D/1 was executed on 10.8.2011, however, it refers to the extended date of execution of sale- deed as 31.7.2011, which

had already expired before execution of the document. The language used in other parts of the document would suggest as if the time has been

extended within which the plaintiff is required to get executed the sale- deed, failing which, the agreement would stand cancelled and the defendant

would be free to alienate the property as per his choice. Therefore, the first agreement was not cancelled in praesenti by this document. It is also

important to notice that since no time limit was fixed in the first agreement, there is no recital either of forfeiture of the earnest money or advance

amount after happening of certain event or thing or that the agreement would stand cancelled.

It appears to us that the appellant/defendant wanted to bind the plaintiff within some time frame for execution of the sale deed but since in the first

agreement, no time limit was fixed, the same was inserted in the second agreement but the fact remains that there being material discrepancy in the

document, the same does not inspire confidence for being acted upon in favour of the defendant.

More startlingly, the defendant has served the legal notice on the plaintiff on 30.8.2011 vide Ex.D/2, therefore, the second agreement- Ex.D/1,

purportedly executed on 10.8.2011, was obviously in existence on the date of serving of legal notice by the defendant to the plaintiff but the legal

notice is conspicuously silent about the second agreement dated 10.8.2011. The plaintiff's assertion that he has not signed over the document thus

assumed great significance and in view of the above discussion, his case appears to be more probable that no such agreement was ever executed by

him admitting certain things and events, which were not mentioned in the original agreement.

In so far as the appellant's argument that the respondent- plaintiff was not ready and willing to execute his part of the contract is concerned,

suffice it would be to indicate that it was the plaintiff who approached the Municipal Corporation, Bilaspur for obtaining No Objection Certificate so

that necessary formalities for execution of the sale-deed are completed.

The plaintiff's witness Avinash Bapte (PW-2) has stated that both the parties submitted affidavits on 10.2.2011 for obtaining NOC. A publication

inviting objection was published on 24.2.2011 and the NOC was issued on 15.9.2011. It is also proved that the plaintiff has paid Rs.36,930/- towards

mutation fee and Rs.1000/- towards publication fee and Rs.1330/- as yearly rent. Therefore, for all the above facts, it is duly proved that the plaintiff

was taking steps for getting executed the sale- deed, otherwise, he would not have taken pains to visit the office of the Municipal Corporation for

obtaining NOC.

In our opinion, the trial Court has rightly held that the plaintiff has proved his case for issuance of decree for specific performance and the finding

arrived at by the trial Court does not suffer from any perversity.

The first appeal being bereft of merits, is liable to be and is hereby dismissed.