Mitthoo Yadav vs Durjan Yadav

Shishir Kumar, J.

Heard learned counsel for appellant.

This is a defendant''s second appeal arising out of suit filed by plaintiff for specific performance of contract.

Allegation made in the plaint is that defendant was in need of some money, therefore, an agreement was executed for sale of property in Rs.50,000/. An agreement was executed after payment of Rs.35,000/ as earnest money and rest of the amount was to be paid at the time of execution of sale deed. This registered agreement was made on 11.8.1995. Specific condition in Clause IV of agreement was that as there is a requirement of permission from ceiling authority, therefore, defendant has to obtain permission and to intimate plaintiff for execution of the sale deed. According to plaintiff, it was never intimated. In 2003, he came to know that now there is no necessity for permission then a registered notice was sent for getting sale deed executed to defendant but when no reply was made then present suit has been filed for specific performance of contract. Defendant has filed his written statement as 16 K with certain document like 44Ga to 45Ga Nakal Khatuni and documents 34 G to 35 G. On behalf of defendant, DW1 has been examined.

Trial Court after considering the case of parties was pleased to frame various issues. One of the issues was whether plaintiff is entitled to get benefit of agreement dated 11.8.1995 and to get sale deed executed. Whether suit filed by plaintiff is within time. On Issue No.1, a finding has been recorded that admittedly agreement has been executed on 11.8.1995 for Arazi No.14 measuring about 0.6 decimal of one half share of defendant after taking Rs.35,000/ as earnest money. On behalf of defendant, Receipt No.35 is the receipt of payment of earnest money of agreement dated 11.8.1995. One of the question raised whether there is any compliance of Section 16C of Specific Relief Act or not. Trial Court has recorded a finding that though from the record it does not appear that plaintiff was ready and willing to perform his part of the contract, therefore, defendant states that plaintiff is not entitled for any relief. Further defendant has claimed that suit is barred by time as it is being filed after seven years from the date of agreement. Trial court after considering claim of parties was pleased to decree the suit only to the extent of refund of the amount which was paid at the time of agreement to the tune of Rs.35,000/ with 8% interest from the date it was paid till the date of payment.

Plaintiff aggrieved by aforesaid judgement and order filed an appeal. Question was raised before the Appellate Court by plaintiff that suit cannot be held to be barred by time in view of fact that according to Registered Agreement Clause IV, burden was upon defendant to intimate regarding permission from the ceiling authority. Admittedly, it has not been done, therefore, as soon as plaintiff came to know that there is no need of permission from ceiling authority after issuance of registered letter suit has been filed. Further as regards compliance of Section 16C, Appellate Court has recorded a finding that facts of this case are different being fact that defendant bind himself in view of Clause IV of the agreement that he has to inform regarding permission from the ceiling authority. Clause IV is being reproduced below:

Lower Appellate Court after considering two main issues and taking into consideration the condition of agreement has recorded a specific finding that admittedly defendant has never intimated regarding permission from ceiling authority. As soon as plaintiff came to know that now there is no need of permission a suit was filed after sending registered notice. Therefore, Appellate Court has held that plaintiff has discharged his burden. In such circumstances, lower Appellate Court has held that as regards readiness and willingness, finding recorded by trial court is not correct. Further as regards question of limitation, Appellate Court has recorded a specific finding that period of three years will run from the date of intimation by defendant in view of condition of Clause IV. After recording such finding, lower Appellate Court has allowed the appeal in toto and directed defendant to execute sale deed.

Defendant aggrieved by aforesaid judgement and order has filed present appeal. Question raised by learned counsel for appellant is that it is settled in law that unless and until it is proved regarding compliance of Section 16C of the Specific Relief Act, suit for specific performance cannot be decreed. He has placed reliance upon a judgement of this Court reported in 2007(69), ALR, 127 Smt. Asarfi Devi Vs. Smt. Jagdish Kumar alias Jagdisho and others. Placing reliance upon aforesaid judgement, learned counsel for appellant states that essential condition under Section 16C is that an averment to that effect regarding readiness and willingness to perform his part of the contract and to prove thereof are two essential conditions stipulated by Section 16C of the Act for granting decree for specific performance. As trial Court has recorded a specific finding that there is no compliance of Section 16, therefore, Appellate Court without reversing such finding cannot decreed the suit. Another judgement relied upon by learned counsel for appellant is 1997 (3) Supreme Court Cases, 1 K.S.Vidyamandam and others Vs. Vairavan. Placing reliance upon aforesaid judgement, learned counsel for appellant states that even though, time is not the essence of contract of sale of immoveable property and suit can be filed within a period of three years provided under Article 54 of the Limitation Act but it should be performed within a reasonable time having regards to term of the contract, prescribing a time limit and nature of property. In such circumstances, learned counsel for appellant states that admittedly suit filed by plaintiff was barred by time, therefore, trial court has rightly held and directed to refund the amount.

I have considered the submission of appellant and perused the record. An agreement was executed in the year 1995. According to Clause IV of the said agreement, permission from ceiling authority was to be taken by defendant and it was specifically mentioned by registered letter that he will inform regarding the fact of permission. Admittedly, after execution of agreement, defendant has not discharged his burden and never intimated this fact. When in 2003, plaintiff came to know regarding repeal of the Ceiling Act, then immediately he sent a registered notice but defendant has not executed the sale deed, then he filed a suit. In my opinion before sending registered letter, there was no necessity on behalf of plaintiffrespondent to prove regarding compliance of Section 16C because a condition was there that as soon as defendant will inform regarding permission, plaintiff will get sale deed executed. If defendant would have intimated the fact regarding permission and plaintiff would not have executed the sale deed, in that circumstances, it can be held that plaintiff was not ready and willing to perform his part of the contract. Conduct of plaintiff clearly shows that as soon as he came to knowledge regarding repeal of the Act, he filed suit meaning thereby he was ready to perform his part of the contract. As regards limitation, in my opinion finding recorded by Appellate Court appears to be correct holding therein that limitation will run from the date of intimation by defendant in view of Clause IV of the agreement because defendant was to intimate, therefore, from the date of intimation, period of three years will run for the purposes of filing suit. Appellate Court was justified in holding that period of filing suit cannot be counted from the date of agreement in view of Clause IV of the agreement.

There is no dispute to this effect regarding submission made by learned counsel for appellant regarding compliance of Section 16C of the Specific Relief Act. Burden is upon plaintiff to prove regarding readiness and willingness and it has to be pleaded but present case is altogether different in view of Clause IV of the Agreement because defendant binds himself that he will inform regarding permission from Ceiling Authority. Admittedly, he has never informed this fact to plaintiff. It is not the case of defendant that it was ever intimated either orally or by registered letter to plaintiff regarding permission.

In such circumstances, contention of appellant regarding limitation and compliance of Section 16C appears to be incorrect and finding recorded by court below are finding of fact based on evidence on record, cannot be interfered by this Court. As no substantial question of law is involved, therefore, the appeal is hereby dismissed.

No order as to costs.