Mahadev vs Geeta and Others

B. Veerappa, J.—Though the appeal is posted for admission, by the consent of the learned counsel for the parties, the matter is taken up for final hearing.

This is a plaintiff''s regular second appeal against the judgment and decree dated 30.08.2011 made in R.A. No. 98/2010 on the file of the Fast Track Court, Jamakhandi, confirming the judgment and decree dated 6.3.2010 made in O.S. No. 203/2006 on the file of the Addl. Civil Judge, (Sr.Dn), Jamakhandi, decreeing the suit in part rejecting the prayer of the plaintiff for specific performance of the contract and held that the plaintiff is entitled to refund of earnest money of Rs. 1,50,000/- with interest at 6% p.a. from the date of suit till the date of realization, from the defendant.

For the sake of convenience the parties are referred to as per their ranking before the Trial Court below.

The plaintiff filed the suit for specific performance to enforce the agreement dated 7.8.2003 contending that one Mahadev Nimbargi - Husband of the 1st defendant was the owner and in possession of the land and he was in need of money for his family necessity and as such offered to sell the suit schedule property on 7.8.2003 for Rs. 4,40,000/- to the plaintiff and the plaintiff accepted the offer and agreed to purchase the land for the said amount and on the same day the plaintiff had paid the earnest money of Rs. 1,50,000/- as part performance of his agreement of sale as per the registered agreement of sale. The deceased Mahadev Nimbargi ought to have executed regular sale deed within one year by receiving the balance consideration of Rs. 2,90,000/-. In the meanwhile, Mahadev Nimbargi was hospitalized and died. While he was suffering from ill-health the plaintiff requested the deceased Mahadev Nimbargi to execute registered sale deed by receiving balance sale consideration amount, but the deceased postponed his part of performance of the contract for one or the other reason and later on died.

It is the further case of the plaintiff that the defendants being Class I heirs of deceased Mahadev Nimbargi had inherited right, title and interest in the suit property were therefore, under the legal obligation to perform the contract on behalf of the deceased Mahadev Nimbargi as per the agreement of sale dated 7.8.2003. Therefore, the plaintiff issued legal notice to the 1st defendant on 11.05.2006. In spite of the legal notice being issued the defendant has not responded and plaintiff has approached the defendant and orally requested to perform her part of the contract receiving the balance consideration. The plaintiff was and is always ready and willing to perform his part of the contract etc. Therefore, he filed the suit.

Defendant No. 1 appeared before the trial Court. Defendant Nos. 2 to 4 are minors and represented by defendant No. 1 - Mother - natural guardian and filed written statement and denied the entire plaint allegations and contended that the suit filed by the plaintiff is false and frivolous. The defendants specifically denied each and every allegation made in the plaint. The suit of the plaintiff is not properly valued. No proper court fee was paid, suit filed by the plaintiff is barred by time and further contended that the deceased Mahadev Nimbargi was habitual person and he was under the clutches of the present plaintiff and his associates. It appears that plaintiff managed to get some documents created in his favour by taking undue advantage of bad habits of deceased Mahadev Nimbargi. In fact in the year 2003 the family of the deceased Mahadev Nimbargi was not at all in financial difficulties and deceased Mahadev Nimbargi family was owning number of properties, so also there was no occasion in the year 2003 to sell the suit property either in favour of the plaintiff or any others. The market value of the property per acre in the year 2003 was Rs. 4,00,000/- and the present defendants have got interest in the legitimate share in the suit property and they are the joint family members along with the deceased Mahadev Nimbargi. Deceased Mahadev Nimbargi alone cannot alienate or transfer or create any charge over the suit property without the consent of the defendants. Such being the fact, the plaintiff suppressing the material facts filed the suit and contended that after the death of Mahadev Nimbargi names of the defendants are entered in the revenue records and that the suit of the plaintiff in the present form is not maintainable. Part of the suit land was acquired by KEB Authorities in the year 1998 to an extent of 2 acres 34 guntas. KEB authorities made initial payment to the owners. Being aggrieved by the compensation awarded, a reference was also filed in LAC 1750/1999 by the defendants. Suppressing all these facts the plaintiff filed the suit, therefore the plaintiff is not entitled to any relief, hence the defendants sought for dismissal of the suit. It is also stated in the written statement that when the case was posted for arguments, the plaintiff amended the plaint and got inserted the relief of compensation. Defendants filed additional written statement and specifically contended that there are no allegations of the plaintiff regarding acquisition of the land in the plaint, therefore sought for dismissal of the suit.

On the basis of the pleadings the Trial Court framed the following issues:--

"1. Whether the plaintiff proves the alleged agreement of sale dated 7.08.2003?

Whether the plaintiff further proves that he is always ready and willing to perform his part of contract?

Whether the suit is not maintainable for non-joinder of necessary parties?

Whether the plaintiff is entitled to the relief of specific performance of contract or whether the Plaintiff is alternatively entitled for the recovery of the earnest money with interest as prayed?

What order or decree? "

In order to establish the plaintiff''s case the plaintiff examined as PW1 and witness as PW.2 and 3 and marked documents Exs. P1 to P4. Defendant No. 1 examined as DW1 and witnesses as DW.2 and 3 and marked documents Exs. D1 to D7.

After considering the entire material on record both the oral and documentary evidence on record. The Trial Court recorded a finding that the plaintiff failed to prove that he was always ready and willing to perform his part of the contract and held the plaintiff is entitled to alternative relief of refund of earnest money with interest at 6% p.a. from the date of petition till the date of realisation and he is not entitled to the relief of specific performance. Accordingly, the suit was decreed in part. Against the said judgment and decree appellant filed R.A. No. 98/2010 on the file of the Fast Track Court, Jamkhandi, who after hearing both the parties passed the impugned judgment and decree and dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the concurrent findings of fact the present Second Appeal is filed.

I have heard the learned counsel for the parties to the lis.

Sri Vijendra Bhimakkanavar, learned counsel for the appellant has contended that both the Courts below erred in not granting specific performance ignoring Ex. P.1 registered agreement of sale. In the notice as well as in the plaint it is specifically averred that he was and he is ready and willing to perform his part of the contract and also contended that the courts below ought to have decreed the suit in exercise of the discretionary power vested under the provisions of Section 20 of the Specific Relief Act in favour of the plaintiff, therefore, he sought to set aside the judgment and decree of the Court below.

Per contra, Sri V.P. Kulkarni, learned counsel for the 1st respondent sought to justify the impugned judgment and decree of the courts below and contended that there is no identity of the property in question, as on the date when the suit was filed by the plaintiff, the land of the defendants was acquired by the KEB Authorities and remaining 1 acre 06 guntas and there is no specific boundary mentioned by the plaintiff and he was aware of the acquisition of the land by the authorities and in this regard a specific defence was taken in the written statement. The plaintiff has not amended the plaint. Therefore, he sought to dismiss the appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

In view of the rival contentions urged and in view of the peculiar facts and circumstances of the present case, the appeal is admitted to consider the only substantial question of law that would arise for consideration is:

"Whether the Courts below were justified in awarding interest at 6% p.a. from the date of petition till the date of realization, on the earnest money of Rs. 1,50,000/-?"

The answer is in the negative, for the reasons stated hereunder:

The substance of the plaint is that the husband of the 1st defendant Mahadev Nimbargi has executed the registered agreement of sale on 7.8.2003 for Rs. 4,40,000/- and has received Rs. 1,50,000/- as part performance of the agreement and in spite of repeated requests, he has not executed the registered document as he was suffering from ill health. It is the further case of the plaintiff that in terms of the agreement one year time was stipulated to execute the registered sale deed. The deceased was hospitalized and subsequently died. Thereafter immediately the plaintiff issued notice on 11.05.2006 and there was no reply by the defendant. While filing the suit the schedule given to the suit is as under:--

"SCHEDULE

A land measuring 4 acre Northern portion out of a land bearing RS No. 128/2 measuring 13 acre 39 guntas (K-21 gunta) assessed at Rs. 09-28 Ps. Situated at Village Budni P.D. Tq. Mudhol

Bounded by:--

To the East - Land of Shri Murari Beniram Agarwal

To the West - Open space belongs to KEB

To the South - Remaining portion out of this land belongs to other owners

To the North: Open space belongs to KEB Situated at Village Budni P.D. Taq. Mudhol Dist. - Bagalkot."

Though a specific averment was made in the written statement that as on the date of filing of the suit, the land was acquired by the KEB authorities, in the year 1998 to an extent of 2 acres 34 guntas, though KEB Authorities made initial payment to the owners, aggrieved by the same, the owners of the land have filed reference application in LAC No. 1750/1999 which is pending. In spite of the said specific averment made in the written statement, the plaintiff has not amended the plaint and in the absence of any amendment he again confining the remaining 1 acre 06 guntas of land as contended by the learned counsel for the appellant in the present appeal in view of the provisions under Order 7 Rule 3 of Code of Civil Procedure.

The Trial Court considering the entire material on record has held that the plaintiff proved the alleged agreement dated 7.8.2003, but he has failed to prove that he was ready and willing to perform his part of the contract. Therefore, the relief of specific performance was rejected and only granted the refund of earnest money with interest at 6% p.a. from the date of petition till the date of realization. While considering issue No. 2, the Trial Court has recorded a finding that though the plaintiff has averred that he is ready and willing to perform his part of the contract all along from the date of execution of agreement till the date of filing the suit, the deceased Mahadev Nimbargi was not ready and willing to perform his part of the contract. To this effect he has given evidence before the Court, in the cross-examination. The plaintiff admitted that he has no idea when Mahadev Nimbargi was dead. Before his death he approached Mahadev Nimbargi along with his brother Siddappa and requested him to perform his part of the contract. The contention of the plaintiff was that he was ready and willing to perform his part of the contract, but it is not forthcoming on what date they approached the deceased Mahadev Nimbargi. PW.2 also stated while accompanying the plaintiff to the house of Mahadev Nimbargi, he requested him to execute the sale deed. The said fact is not at all forthcoming in the evidence of plaintiff. Therefore, the evidence of PWs.1 and 2 are not sufficient to accept the case of the plaintiff that he was ready and willing to perform his part of the contract. The Trial Court further recorded a finding that from Ex. P2 registered agreement of sale it is very clear that there is no any mention regarding possession of the suit property to be given to the plaintiff. It is also clear from the plaint averments and prayer column is silent about the possession of suit property. Nowhere the plaintiff pleaded whether the possession of the suit property was given to him. Plaintiff also not prayed before the Court that the direction is to be issued to the defendants to hand over the possession of the suit property to the plaintiff. No explanation is forthcoming in this respect. Hence, adverse inference has to be drawn against the plaintiff that the plaintiff knowing all these facts kept quite till the death of the Mahadev Nimbargi without pressing the agreement of sale. Hence it is very difficult to accept the case of the plaintiff that he was ready and willing to perform his part of the contract all along. A perusal of Ex. P3 legal notice discloses that plaintiff issued the legal notice to the 1st defendant after the death of Mahadev Nimbargi. If at all the plaintiff was and is ready and willing to perform his part of the contract all along, then why he has not issued legal notice during the lifetime of deceased Mahadev Nimbargi or soon after the stipulated period is over in not stated anywhere. As per the agreement of sale within one year the regular sale deed ought to have been executed, but the plaintiff kept quite till 2006 and issued legal notice to the wife of deceased Mahadev calling upon her to execute the registered sale deed only in the year 2006 i.e., on 1.5.2006 and also recorded a finding that the plaintiff requested several times the deceased Mahadev Nimbargi to perform his part of the contract and ultimately dismissed the suit. On re-appreciating the entire material on record, the Lower Appellate Court recorded a finding that on perusal of the award i.e., Ex. D1 wherein part of the suit land was acquired by LAQ/SR/26/1997-98 dated 12.1.1999 and award is passed in the name of R-1 to R-4 and now that they have approached reference Court in LAC No. 1750/1999 seeking for enhanced compensation. Plaintiff does not know the date of death of Mahadev Nimbargi and also he has not caused any notice during his life time, on the contrary plaintiff has filed this suit nearly after completion of three years just to avoid the period of limitation where in he has filed a suit on 5.8.2006, directly against defendant No. 1 who is the wife of deceased. The plaintiff caused notice dated 11.05.2006 to defendant No. 1 only, and he has filed an application for impleading respondent Nos. 2 to 4, on 30.08.2008, in the suit much after lapse of two years, hence it appears that plaintiff knowingly kept quite and he has not filed any objections before acquiring authority of portion of suit land, and has filed amendment petition on 05.12.2009, at the stage of arguments praying for permitting the plaintiff to obtain compensation amount to be awarded by the Reference Court. On perusal of the documents, wherein the deceased had purchased the suit land and his name was mutated as per mutation entry and revenue record entries and as per the admission of PW.2, in the cross-examination, wherein he admits that except the suit land deceased had no land at Mahalingpur, hence considering the evidence of PWs.1 to 3 the plaintiff has utterly failed to prove his readiness and willingness to perform his part of the contract as per Section 16(c) of the Specific Relief Act, even the plaintiff has filed the suit before the trial Court under deficit Court Fee and has paid Court fee on 7.8.2006 and the plaintiff failed to prove the readiness and willingness and it is not sufficient only by pleading in the plaint about the readiness and willingness, but on the contrary such averment has to be proved by cogent evidence, but in this case plaintiff failed to prove that he was ready and willing to perform his part of the contract. And also recorded a finding that the suit land is joint family property of defendant Nos. 1 to 4 and deceased Mahadev Nimbargi alone was not competent to sell the entire extent of land and already part of suit land 2 acres 35 guntas was acquired and therefore held that the Trial Court on considering Issue Nos. 2 and 3 has rightly and judiciously considered the provisions of Section 20 of the Specific Relief Act and passed the impugned judgment. The same is in accordance with law. Accordingly dismissed the appeal.

It is not in dispute that during the pendency of the proceedings defendant Nos. 2 to 4 were impleaded when it was barred by time and the plaintiff while filing the suit was not specific about the extent of suit land and he has filed the suit in respect of the entire extent of 4 acres of suit land as already stated supra and not in respect of the remaining extent of 1 acre 06 guntas of land. In the absence of any specific identity of the property it is not possible to grant the relief to an extent of 1 acre 06 guntas and admittedly the plaintiff has not taken the specific plea in the plaint as per the provisions of Section 16(c) of the Specific Relief Act, 1963, it mandates (readiness and willingness on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance). In a suit for specific performance the plaintiff alleged and proved the continuous readiness and willingness to perform his part of the contract from the date of the contract and the entire onus is on the plaintiff and admittedly in the present case agreement was executed on 7.8.2003. The time stipulated in the agreement was one year and the husband of the 1st defendant died in September 2003 and notice was issued to the 1st defendant in the year 2006 and suit was filed on 04.08.2006 i.e., 2 and 1/2 years after the date of agreement. Therefore there was no pleadings, there is no evidence in this regard to comply with the provisions of Section 16(c) of the Specific Relief Act, therefore, the oral and documentary evidence clearly indicates that the plaintiff failed to prove his case as contemplated under Section 16(c) of the Specific Relief Act, and hence the suit filed against defendant Nos. 2 to 4 was clearly barred by time. Therefore, both the Trial Court and the Lower Appellate Court concurrently held that he was not ready and willing to perform his part of the contract and the same is in accordance with law.

It is also not in dispute that the plaintiff has proved the agreement dated 7.8.2003 stated to have been executed by the husband of the 1st defendant. While executing the agreement of sale in favour of the plaintiff, he was aware that the land was acquired by the KEB Authority in respect of a portion of the land. The said fact has been suppressed by him and executed the agreement of sale in favour of plaintiff, though the agreement of sale has been specifically denied by defendant Nos. 1 to 4.

The fact remains that acquisition is not in dispute. In view of the acquisition and also the agreement of sale, it clearly indicates that though the entire land was not available for the husband of the 1st defendant to execute the agreement in favour of the plaintiff, both the courts below held that agreement is proved. Therefore, taking into consideration the provisions of Section 21 of the Specific Relief Act, granting of 6% interest on the earnest money received by the deceased husband of the 1st defendant is on the lower side. In order to compensate the plaintiff and in view of the peculiar facts and circumstances of the present case, this Court is of the considered opinion that the plaintiff is entitled to refund of earnest money of Rs. 1,50,000/- from the defendants with 12% interest from the date of petition till the date of realization, would be proper in the ends interest of justice.

Accordingly, the impugned judgment and decree of the Court below is modified only to the extent that the plaintiff is entitled to refund of earnest money of Rs. 1,50,000/- with 12% interest on the earnest money instead of 6% interest from the date of petition till the date of realization.

Accordingly the appeal is allowed in part. Parties to bear their own costs.