Virendra Kumar Tiwari vs Sitaram Sharma and Another

N.K. Agarwal, J.—This is Defendant''s appeal against the judgment and decree passed by the District Judge, Janjgir Champa in Civil Suit No. 3-A/2006 decreeing the Plaintiffs suit for specific performance of contract.

Facts of the case in brief are as under:

(i) Vide agreement to sell (Annexure P-1), dated 25th July, 1999, the Appellant (hereinafter referred to as the Defendant) and Respondent No. (sic) (hereinafter referred to as the Plaintiff) entered into agreement of sell of (sic) property bearing Khasra No. 693-1g area 0.109 hectare, i.e., about 27 decimal for a sale consideration of Rs. 10,25,000/-. The Plaintiff also paid Rs. 5,000/- as advance. As per the terms of above agreement, the land was to be measured and demarcated by both the parties and sale consideration was made payable proportionate to the area which would be found in demarcation. The land was to be demarcated by both the parties within a week. The Plaintiff was required to pay to the Defendant part sale consideration to clear off Defendant''s tractor loan dues and balance sale consideration was made payable at the time of execution of registration of the sale deed. Expenses of execution of registration of sale deed was to be borne by purchaser.

(ii) A general notice vide Exhs. P-6 and P-7 was published in daily newspapers Nav Bharat and Dainik Bhaskar, dated 28-7-1999 inviting objections in the above sale transaction. In pursuance thereof, objection was raised by Shri R.K. Soni, Advocate on behalf of Defendant''s brother disputing sole title of the Defendant vide general notice published in Nav Bharat, dated 2nd August, 1999. A notice was sent by the Plaintiff requesting the Defendant to execute sale deed in accordance with agreement of the sale (Exh. P-1) after getting the suit land demarcated, in the year 2005. The same was denied by the Defendant on the ground that the Plaintiff had himself withdrawn from the above agreement and had also received back the amount of Rs. 5,000/- , paid as advance. Further the Plaintiff was never ready and willing to (sic) his part of contract, i.e., to get the sale deed executed by paying sale consideration in accordance with the agreement.

(iii) In the above facts situation, the instant suit has been preferred by the Plaintiff claiming specific performance of contract.

(iv) The claim was resisted and denied by the Defendant.

(v) Learned Trial Court had made several issues including the issue of readiness and willingness on the part of the Plaintiff. The Plaintiff had examined two witnesses whereas the Defendant examined himself.

(vi) Learned Trial Court held: the Plaintiff was always ready and willing to perform his part of contract but the Defendant was not ready; although as per agreement, the Plaintiff was required to pay a part of sale consideration amount in order to clear off Defendant''s tractor loan dues but the same was never demanded by the Defendant, and decreed the suit. Hence this appeal.

Shri Rajeev Shrivastava, learned Counsel for the Appellant would submit, learned Trial Court erred in not holding that the Plaintiff has himself withdrawn from the agreement by taking back his advance amount of Rs. 5,000/-; was never ready and willing to perform his part of agreement; has not fulfilled the necessary condition of the contract, i.e., payment of part consideration to clear off the Defendant''s tractor loan dues; the suit has been filed after undue delay of more than 6 years and thus has seriously erred in decreeing Plaintiff''s suit.

On the other hand, Shri Aditya Tiwari, learned Counsel appearing for the Respondent supported the judgment and decree and submitted, in the facts and circumstances of the case, learned Trial Court has rightly decreed the suit.

We have heard learned Counsel for the parties and perused the impugned judgment and decree and the record of the Trial Court.

Indisputably the Plaintiff had not paid any amount to the Defendant for the purpose of clearing off his tractor loan dues though this was essential condition of the contract (Exh. P-1). It is also not in dispute that the Plaintiff kept mum for a long period of six years. As per the agreement, obligation of demarcation has been placed upon both the parties and not on the Plaintiff alone and the Defendant is estopped from imposing such obligation only on the Plaintiff. Further there is no material placed on record showing Plaintiff''s intention to get the suit land demarcated and it could not be done due to non-co-operation of the Defendant. It is also inequitable on the part of the Plaintiff in saying agreement alive for such a long period of six years without any effort made in furtherance to agreement of sale. Plaintiff in Para 10 of his statement has admitted, he did not send any notice when measurement was not done within a week. Virendra Kumar (Defendant) never denied measurement. In Para 14, he has admitted, before 9-11-2005, no steps were taken by him for execution of sale deed. It appears, on account of dispute raised by the Defendant''s brother regarding title of suit property, the Plaintiff lost his interest, otherwise no prudent purchaser would keep mum for such a long period of six years without taking any step in furtherance of the agreement.

Indisputably, the Plaintiff had not complied with the necessary and essential terms of the contract inasmuch as he has not paid to Plaintiff amount of part consideration to clear off his tractor loan dues. Section 16(C) of the Specific Reliefs Act mandates Plaintiff to plead and prove his readiness and willingness to perform the essential terms of the contract which are to be performed by him. As per Section 20 of the Specific Relief Act, relief of specific performance is discretionary in nature. The Plaintiff kept silence for a long period of six years without taking any step in furtherance of the agreement to sell. He also failed to explain inordinate delay of six years in filing present suit. Delay defeats equity. In such circumstances, it cannot be said that the Plaintiff was always ready and willing to perform his part of contract. Finding of learned Trial Court in his regard is at all not sustainable in law. Thus, the Plaintiff is not entitled to get decree of specific performance of contract.

For the foregoing, in our considered opinion, the judgment and decree passed by the Trial Court decreeing the suit for specific performance of the contract in favour of the Plaintiff being not sustainable in law deserves to be and hereby set aside.

Appeal is therefore, allowed. Consequently, the suit stands dismissed.

No order as to costs.