Shri Ram vs Puran Mal

R.L. Anand, J.—This is defendant''s appeal and has been directed against the judgment and decree dated 9.12.1998 passed by the Court of Additional District Judge, Namaul, which affirmed the judgment and decree dated 15.5.1991 passed by the Court of Additional Senior Sub Judge, Namaul, which decreed the suit of the plaintiff-respondent for possession by way of specific performance on the basis of agreement of sale dated 30.4.1987.

The pleadings of the parties can be described in the following manner:-

Plaintiff filed a suit for possession by way of specific performance on the basis of agreement of sale dated 30.4.1987. Through this agreement agricultural land fully mentioned in the agreement itself measuring eight kanals situated in village Rajpur, Tehsil Narnaul as per jamabandi for the year 1981-82 was sold to the plaintiff by the deceased father of the defendants namely Ram Pat, who entered into agreement of sale for a sum of Rs.25,000/-. Ah advance sum of Rs.12,000/- was received. The terms of the agreement was that the remaining amount shall be paid within one year and if Ram Pat deceased failed to make the payment, he would execute the sale-deed in favour of the plaintiff. Ram Pat died during this period of one year. On 15.4.1988, plaintiff through his counsel issued a notice to the defendants for execution of sale deed and to come present on 29.4.1988 in the office of Sub Registrar, Narnaul for execution of the sale deed. On 29.4.1988 plaintiff came present in the office of Sub-Registrar along with balance amount of Rs. 13,000/- and other registration charges etc., but the defendants never put their appearance for execution of the sale-deed. It is also alleged that the plaintiff was always ready and willing to perform his part of contract but the defendants were not performing their part of contract despite notice. Hence the suit.

Defendant No.1 admitted the case of the plaintiff. The suit was, however, contested by defendants No.2 to 4 and their plea was that Ram Pat never executed any agreement to sell of the disputed property nor he recovered any amount by way of earnest money. If the plaintiff had got executed any agreement to sell in his favour, the defendants are not liable. It was pleaded that the plaintiff has no locus standi to file the suit and that the plaintiff never took the possession of the suit land. On these pleas, the defendant have prayed for the dismissal of the suit.

Defendants No. 5 to 6 did not file separate written statement, but they adopted the written statement filed by defendants No.2 to 4.

Plaintiff filed replication to the written statement filed by the contesting defendants in which he reiterated the pleas put forth in the plaint by denying those of the written statement.

On the pleadings of the parties, the following issues were framed by the trial Court:-

Whether Ran Pat deceased, the father of the defendants, had entered into an agreement to sell the suit land to the plaintiff on 30.4.1987 and received an earnest money of Rs.12,000/- and agreed to execute the sale deed within one year from the date of agreement, if so its effect? OPP

Whether the plaintiff is and was ready and willing to perform his part of agreement, if so its effect? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has got no locus standi to file the present suit? OPD

Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD

Whether the alleged agreement is the result of fraud and misrepresentation? OPD

Whether the defendants are entitled for special costs.

Relief.

The parties led oral and documentary evidence in support of their respective cases and for the reasons given in paras No. 10 to 16 of the judgment, the suit was decreed.

Aggrieved by the judgment sand decree of the trial Court, one of the defendants Shri Ram filed the appeal before the Court of Addl. District Judge, who affirmed the judgment sand decree of the trial Court and dismissed the appeal for the reasons given in paras No.9 to 15 of the impugned judgment and aggrieved by the judgment and decree of the first appellate Court dated 9.12.1998, the present appeal.

Before I deal with the submissions raised by the learned counsel for the appellant, I would like to reproduce the reasons given by the first appellate Court in dismissing the appeal as under:-

"9. Assailing the findings recorded by the learned lower court on issues No.1 and 2 learned counsellor the appellant submitted that even if the agreement of sale (Ex.P1) was taken to have been executed by the deceased Rampat, the same Could not I be specifically enforced particularly when it was stipulated therein that in case the deceased Rampat returned the amount of Rs. 12,000/- received as part consideration to the plaintiff the agreement to shall be deemed to have been cancelled. In the light of this clause contained in the agreement, learned counsel for the appellant submitted that at the maximum the suit could be decreed for the amount received by the deceased at the time of execution of the agreement. Learned counsel for the appellant further urged that the agreement was never intended to the enforced as such, rather it was only executed to ensue the return of the amount of Rs. 12,000/- received by the deceased Rampat at the time of executing this agreement.

There is hardly any substance in the above submission made by learned counsel for the appellant. There is no dispute with regard to the fact that u/s 10 of the Specific Relief Act, the decree for specific performance is in the discretion of the court but the discretion should not be refused arbitrarily. This discretion should be exercised on the sound principles of law. In this case the discretion exercised by learned lower court does not suffer from any infirmity. Merely because the stipulation regarding the return of the amount received by the deceased was there in the agreement, as argued by learned counsel for the appellant, it could not be taken that the plaintiff was not entitled to specific performance of the alleged agreement to sell. Specific performance of the agreement to sell cannot be denied merely because a mention in the agreement of a sum to be paid as damages in case of default is there. Such mention of damages is only for the purpose of securing performance, in this case also when the deceased specifically agreed to sell the land, in dispute in favour of the plaintiff vide this agreement and executed this agreement, there is no ground to decline the specific performance of this agreement in favour of the plaintiff. In the Division Bench authority of our own Hon''ble High Court Kapoor Singh and Others Vs. Surinder Singh and Others, and in another authority of Hon''ble Madras High Court V.K. Kandasami Chettair etc. v. Shanmugha Thevar etc., 1949 (Madras) 302 it was held that existence of provision for payment of damages on breach does not preclude vendee from claiming specific performance of the agreement of sale, it was further held that such a clause does not mean that on default of one party other party should be under disability to enforce his rights under contract. In view of these authorities also even if the alleged clause was there in the agreement Ex.P1, there was no ground to decline the specific performance of this agreement, in another authority Humum Chand etc. v. Nikka Singh etc.,1908 Civil Judgements No. 15, page 85, it was held that such a clause for payment of penalty for committing breach of the agreement was not a bar to the specific performance of the agreement. In that case the vendor had agreed to sell his land to the vendee. On his failure to perform his part of the agreement he was to pay the plaintiff Rs.75/- as damages besides refunding the earnest money. Despite the fact that penalty clause was there, it was held that the plaintiff was entitled to the specific performance'' of the agreement and he Was not bound to accept the penalty in lieu of possession of the land.

In addition to the case law cited hereinabove, it shall also be worthwhile to refer to the another authority of our own Hon''ble High Court Asfar Gujjar v. Barkha Ram, 1985 P.L.J. 23, wherein it was held that ordinarily decree for specific performance is to be granted in order to bind parties to their terms of contract. The specific performance can only be refused if some special circumstances as envisaged u/s 20 of the Specific Relief Act were made out. In that case also vast option was given to the vendee to recover back; his arrear of money alongwith special damages. Still the decree for specific performance of the agreement was granted.

In view of the above case law cited by learned counsel for the respondent the copy of judgment placed on file by learned counsel for the appellant, passed in R.S.A. No.2198 of 1997 Is of on avail to the appellant. In that case there were other circumstances as laid down u/s 20 of the Specific Relief Act in view of which the relief of Specific performance was declined. Thus, this authority is distinguishable on facts. In that case over and above everything even the plaintiff had not come forward to enter the witness box and state that he had been ready and willing to perform his part of agreement His assertions regarding the fact, that he had gone to the office of Sub Registrar to show his readiness to perform his part of contract also remained unproved. In that eventuality, instead of granting the decree for specific performance of the agreement the amount received as earnest money was ordered to be refunded with interest. Thus, this authority has no applicability to the facts of this case as in this case such was the situation, The defendants even nowhere pleaded that they had been ready and willing to perform their part of agreement. They also did not. plead that instead of decree for specific performance refund of the money be ordered. They have also not pleaded anywhere that the plaintiff had not been ready and willing to perform his part of agreement.

In para no.5 of the plaint, the plaintiff had pleaded in so man words that he had been ready and willing to perform his part of agreement. He further elaborated that he asked; the defendants to perform their part of contract by way of executing the sale deed after receiving the remaining amount of consideration. He further pleaded that in that regard he had served the defendants with notices also after the death of deceased Rampat and requested them to execute the sale deed on receipt of remaining sale consideration. He also pleaded that orally also he had requested the defendants to perform their part of agreement but the defendants did not come forward.

In reply to the above pleadings the defendants just pleaded that the contents of this para were not admitted to be correct. This vague denial of the defendants tentamounts to admission of the fact on their part that the plaintiff has been ready and willing to perform his part of agreement. Otherwise also neither in their statements nor in any suggestion put to the plaintiff, the defendants ever stated that the plaintiff had not been ready and willing to perform his part of agreement. That being so, this defence is not available to the defendants in this, case and. the above authority of our own Hon''ble High Court cited by learned counsel for the appellant does not help him.

Over and above of what, has been discussed above it is also worthwhile to mention here that one of the defendants Ram Chander has admitted the claim of the plaintiff in toto. That admission further strengthens the claim of the plaintiff with regard to the execution of the agreement of sale Ex.P1 and his readiness and willingness to perform his part of agreement in terms thereof. In view of this it is hard to deviate from the conclusion arrived at by learned lower court while deciding issues No.1 and 2 above. Finding no aberration in the approach of learned lower court, the findings recorded by it on both these issues are hereby affirmed. Findings on other issues were not at all challenged before me. Accordingly, they are also affirmed."

I have heard Mr. S.K. Mittal, Advocate for the appellant and his assistance I have gone through the records of this appeal. After hearing the learned counsel for the appellant I am of the opinion mat this appeal deserves dismissal in in limine. The learned counsel for the appellant had tried to assail the judgments of the Court below by submitting that in the agreement pf sale dated 30.4.1987 it was one of the clauses that the father of the defendants would return the amount of Rs.12, 000/- which- was advanced to him by way of earnest money within one year from the state of the execution of the agreement and if he does return the amount of Rs. 12,000/- to the vendee, in that eventuality the agreement will become null and void and it will not be enforceable at the instance of the vendee. The counsel further submitted that the introduction of this clause indicates that this agreement was determinable at the instance of the defendants and in these circumstances the relief of specific performance which was discretionary in nature should not and could not be granted in favour of the plaintiff-respondent. He further submitted that the agreement of sale was executed by the father of the defendants and during the life time of the father of the defendants, the plaintiff did not file any suit for specific performance and in these circumstances the defendants should not be asked to perform the terms of the agreement by transfer of the property. He further submitted that through the agreement of sale dated 30.4.1987 the father of the defendants only want to secure a loan. The value of the land in the year 1987 could not be Rs.25,000/- against eight kanals of agricultural land and on ail these factors the decree for specific performance could not be granted

I have considered the submissions raised by the learned counsel for the appellant. In my opinion the counsel for the appellant was building castles in the air. There was no plea on the part of the defendants in the written statement mat the agreement was determinate at the instance of the defendants predecessor. No issue was framed in this regard. Even at the trial stage not an iota of suggestion was given to the plaintiff that the agreement was revokable or determinable at the instance of the predecessor of the defendants. In these circumstances, it will not be proper nor it will be legal on the part of this court to allow the defendants to raise a plea which was never taken up in the written statement. The coiinsel for the appellant relied upon a judgment dated 11.8.1998. passed in R.S.A. No.2198 of 1997 by this High Court in case Surender @ Narender v. Umrao Lal and submitted that in the cited case the agreement of sale contained a clause to the effect that if the defendant pays a sum of Rs.5,000/- on or before a specific date i.e. 2.5.1988, the agreement of sale shall stand rescinded. In the cited case the defendant had taken a specific plea that he obtained a loan of Rs.5,000/- from the plaintiff and as a security for the repayment of the loan he executed the agreement of sale. Moreover, in the cited case the Hon''ble Lordship was pleased to hold that it stands proved on the record that the plaintiff was not ready and willing to perform his part of the agreement. The plaintiff did not step in the witness-box. The trial Court also held that the plaintiff was not willing to perform his part of the contract. In these circumstances, the Hon''ble Lordship was pleased to hold that the intention of the parties was only to Create a relationship of creditor and debtor and that the agreement came to be executed only as a security for repayment of the loan. Even in the cited case the plaintiff did not serve any notice upon the defendant calling upon the defendant to execute the sale deed as per the terms. However, in the present case the stand of the plaintiff was that an agreement of sale was executed in his favour for a consideration of Rs.25,000/- arid a sum of Rs. 12,000/- was given by way of earnest money, if the agreement was determinable or revokable at the instance of the defendants on the payment of Rs. 12, 000/-. the defendants ought to have taken a plea. There should be a plea on behalf of the defendants that their predecessor or they tendered the amount of Rs.12,000/-, to the plaintiff as there was a relationship of debtor and creditor. In the absence of all this, it will not be permissible for this court to allow the defendants to raise a plea which was never taken or adopted before the courts below

No doubt, the relief of specific performance is discretionary, but discretion has to be exercised according to the judicial principles. It is a case of agreement of sale of immovable property. As per Explanation (i) of Section 10, the Court has to presume, unless and until the contrary is proved, that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. The counsel for the appellant has taken the shelter of Section 14 of the Specific Relief Act in which it has been stated that those contracts which are determinable in nature cannot be specifically enforced, nor those can be enforced where the compensation is an adequate relief. Also my attention was drawn to Section 20 of the Act which shows that the jurisdiction of the civil Court to grant decree for specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Explanation 1 added to Section 20 also makes it abundantly clear that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b) of Sub-section (2) of Section 20. An agreement of sale executed by the predecessor is binding upon the heirs of the predecessor. As per Section 19 of the Act, a decree for specific performance can be granted against a person who was a party to a contract and the persons claiming under such party. The defendants are the heirs of Ram Pat and, therefore, they are bound by the agreement of sale which was executed by their father. The defendants in the courts below failed to show that the agreement of sate was never executed or that it was without consideration. In these circumstances, the judgment Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, is not applicable to the facts in hand. The agreement relied upon by the plaintiff is not an instrument of oppression to have unfair advantage over the defendants. When a person has entered into a valid contract, the law expects the performance of that obligation. In the present case there are concurrent (Sic)of fact against the defendants. In this view of the matter, I do not see any merit in this appeal and dismiss the same in limine, with no order as to costs.