Sukhbir Shoken vs Parmeet Singh and Others

Sanjay Kishan Kaul, J.

IA No.7807/07 (S.151 CPC by Def.1and2 )

The plaintiff has filed a suit for specific performance of agreement to sell and possession in respect of the agreement dated 15.10.2006. The

case of the plaintiff is that defendant no.1 is the owner/humidor and in possession of agricultural land admeasuring 13 Bighas 6 bids was of which 4

bighas 16 bids was is entered in Khata Khatauni No.184/110-B min bearing mustil/Khasra No.45/13, 4 bighas 16 bids was entered in Khata

Khatauni No.278/167 min bearing mustil/Khasra No.45/12 and 3 bighas 14 bids was entered in Khata Khatauni No.278/167 min bearing

mustil/Khasra No.45/11 min, in the Revenue estate of village Kanganheri, Tehsil- Najafgarh (Palam), Distt. South West Delhi.

It is claimed that defendant no.2 is the owner/bhumidar and in possession of agricultural land admeasuring 14 Bighas 1 bids was of which 4

bighas 13 bids was is entered in Khata Khatauni No.65A/38A min bearing mustil/Khasra No.53/21 min, 4 bighas 12 bids was entered in Khata

Khatauni No.242/140 min bearing mustil/Khasra No.52/24 and 4 bighas 16 bids was entered in Khata Khatauni No.242/140 min bearing

mustil/Khasra No.52/25 min. All the land is situated in Revenue estate of village Kanganheri, Tehsil-Najafgarh (Palam), Distt. South West, Delhi.

Defendant no.3 is the owner/bhumidar and in possession of agricultural land admeasuring 13 Bighas 6 bids was of which 3 bighas 14 bids was is

entered in Khata Khatauni No.542/420 min bearing mustil/Khasra No.45/40 min, 4 bighas 16 bids was entered in Khata Khatauni No.542/420

min bearing mustil/Khasra No.45/9 min and 4 bighas 16 bids was entered in Khata Khatauni No.178/110B min bearing mustil/Khasra No.45/8

min. All the land is situated in Revenue estate of village Kanganheri, Tehsil-Najafgarh (Palam), Distt. South West, Delhi.

The plaintiff claims that defendants no.1 and 2 on their behalf and on behalf of defendant no.3 negotiated with the plaintiff for sale of the total

agricultural land for a sum of Rs.4.40 crores. Defendants no.1 and 3 are real brothers while defendant no.2 is the mother. The plaint claims that

defendants no.1 and 2 represented to the plaintiff that they are duly authorized by defendant no.3 to negotiate the sale of the property and the

negotiations are stated to have taken place at Mumbai on 15.10.2006. The plaintiff paid an advance of a sum of Rs.7.00 lacs out of the total sale

consideration of Rs.4.40 crores and the balance consideration had to be paid on or before 31.12.2006 failing which the earnest money was liable

to be forfeited. The advance was accepted by defendants no.1 and 2 while it is claimed that the same was also on behalf of defendant no.3.

The plaintiff claims that after entering into the agreement to sell dated 15.10.2006 and before the expiry of final date for payment dated

31.12.2006, defendant no.1 sent a letter dated 31.10.2006 to the plaintiff stating that his brother, defendant no.3, was refusing to sell the land and,

thus, in respect of the sale of that land, the negotiations had come to an end. The defendants also sent with the letter two drafts of Rs.3.50 lacs

each returning the advance money. It is in view thereof that a suit for specific performance was filed. The suit has been resisted by the defendants.

At the stage when summons were issued in the suit, interim orders were also passed on an application filed by the plaintiff under Order 39 Rule

1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) whereby status quo was directed to be maintained only in

respect of the land owned by defendants no.1 and 2 since indisputably defendant no.3 had not entered into any agreement. The application for

interim relief was taken up for hearing on 17.4.2007 and in view of the pleadings and the submissions, it emerged that the principal stand of

defendants no.1 and 2 was that the plaintiff was not in a position to comply with the financial obligations. It was agreed in Court, as recorded in the

order, that the refund cheque issued by defendants no.1 and 2 to the plaintiff be encased and thereafter the total sale consideration be deposited by

the plaintiff in Court within one month from the date of the order. The interim orders of injunction were made absolute subject to the deposit of the

amount. On the same date issues were also framed inter alias on the aspect of readiness and willingness of the plaintiff to perform the obligation

under the alleged agreement (the document between the parties is the receipt dated 15.10.2006, which is stated to constitute an agreement by the

plaintiff).

The plaintiff encased the cheques for Rs.7.00 lacs but failed to deposit the amount. The plaintiff challenged the aforesaid order in FAO(OS)

189/2007, but the appeal was dismissed on 30.5.2007.

It is thereafter that the present application has been filed by defendants no.1 and 2 for dismissal of the suit on the ground that the aforesaid

conduct of the plaintiff shows that he is not ready and willing to perform the obligations for purchase of land and once the plaintiff is not ready and

willing, there is no aspect which ought to go to trial and the suit for performance itself ought to be dismissed.

Learned Counsel for defendants no.1 and 2 has relied upon the judgment of the Supreme Court in N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R.

Jagan Mohan Rao and others, where the aspect of discretion of the Court in respect of suits for specific performance has been discussed. It has

been emphasized that the remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to

be exercised according to settled principles of law and not arbitrarily as adumbrated u/s 20 of the Specific Relief Act, 1963 (for short, ''the Act'').

It has been emphasized that the Court is not bound to grant relief u/s 20 of the Act merely because there is a valid agreement of sale. u/s 16(c) of

the said Act, the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the

contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The

continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. For the said

purpose, the conduct of the plaintiff prior and subsequent to the filing of the suit along with attending circumstances have to be taken into

consideration and the amount of consideration which the plaintiff had agreed to pay to the defendant was held as of necessity to be proved to be

available. The readiness and willingness has to be proved right from the date of the execution till the date of decree.

Learned Counsel has also referred to a Division Bench judgment of the Madras High Court in K. Majeed Vs. Pappa @ Madurambal and

Natarajan, where in para-7 it has been observed that where the plaintiff has taken a stand that he was ready and willing to perform the contract

and in furtherance thereto was willing to deposit the balance sale consideration but failed to deposit the same even during extension of time resulting

in dismissal of the application, it cannot be said that the plaintiff had requisite money to deposit the balance sale consideration and to meet the

obligation. Thus, it was held that there was no evidence to show his readiness and willingness to perform his part of the contract.

Learned Counsel for the plaintiff, on the other hand, contends that the direction to the plaintiff to deposit the consideration was harsh as the

plaintiff would be out of pocket of the sale consideration without getting the enjoyment of the land. Learned Counsel further submits that the

direction is only relevant for purposes of disposal of the interim application and the plaintiff cannot be non-suited on that account.

On hearing learned Counsel for the parties, I am of the considered view that the crucial aspect undoubtedly in a suit for specific performance is

the readiness and willingness of the plaintiff to meet the obligation under the agreement. Such readiness and willingness has to be shown by the

plaintiff''s ability to pay the amount of consideration stated to be agreed upon. This readiness and willingness has to be throughout the period

commencing from the agreement till the date of the decree.

I am unable to accept the plea of learned Counsel for the plaintiff that the condition imposed on the plaintiff was harsh for deposit of the full

amount. That was a condition which was agreed upon by the plaintiff and the plaintiff can hardly make a grievance in respect of the same. Not only

that, the plaintiff encased the cheque even for the earnest money. Thus, a part of the order which facilitated the plaintiff to receive back the earnest

money was implemented, but the remaining part of the order directing the plaintiff to deposit the amount in Court was not complied with. This itself

would show that the plaintiff was not in a position to meet the obligations under the agreement.

The question remains whether such a suit should still be set down for trial and the evidence recorded. I am of the view that the recording of

evidence in such a situation would be a fruitless exercise as undoubtedly issue no.2 relates to the readiness and willingness of the plaintiff to

perform the obligations under the agreement. It cannot be said that the plaintiff was throughout ready and willing since after agreeing to deposit the

amount in Court, the plaintiff has failed to deposit the said amount. No further evidence, in fact, is required. Once there is no readiness and

willingness, there cannot be a question of exercise of discretion for granting specific performance in such a suit. There is no earnest money of the

plaintiff lying with the defendants as that amount also stands encased by the plaintiff. The plaintiff having no monetary stake now just wants to keep

the sword of the suit hanging over the head of the defendants.

I am, thus, of the considered view that the defendants are liable to succeed in the present application and the application is accordingly

allowed. CS(OS) 2397/2006

In view of the aforesaid order, the suit filed by the plaintiff is dismissed, leaving the parties to bear their own costs. Decree sheet be drawn up

accordingly.