Waryam Singh and others vs Gurnam Singh and others

This appeal is by the defendants in a suit for specific performance of the agreement to sell the land in dispute, which was decreed by Senior Sub Judge, Faridkot, on July 22, 1978.

Gurnam Singh and others, plaintiffs, entered into an agreement dt. Aug. 11, 1973 with Waryam Singh defendant No. 1, who agreed to sell the land in dispute to Gurnam Singh and others for Rs. 31,000/-. A sum of Rs. 7,500/- was accepted by him towards earnest money and out of the sale consideration on payment of the mortgage amount the mortgage was to be redeemed which was with Murli Dhar and others. The sale deed was to be executed by May 28, 1974. Since Waryam Singh defendant tried to alienate the land in favour of other defendants, the present suit was filed for specific performance of the agreement along with damages to the extent of Rs. 5,000/- on account of breach of the contract. The suit was contested by Waryam Singh and some of the other defendants. Waryam Singh admitted execution of the agreement aforesaid. However, he asserted that only a sum of Rs. 2,500/- was paid to him as advance and the plaintiffs had committed breach of the contract. The other defendants (mortgages) as well as intending purchasers contested the suit and denied agreement in favour of the plaintiffs. They also pleaded breach of contract on the part of the plaintiffs that they were not ready and willing to perform their part of the contract by discharging mortgage amount before coming to the Court. According to them this was a condition precedent. They claim to be bona fide purchasers without notice of the previous agreement. Waryam Singh had entered into an agreement to sell in favour of defendants Nos. 2 to 7 on Aug. 27, 1973 for Rs. 35,000/-and had received a sum of Rs. 5,000/- as earnest money. The sale deed was to be executed on Nov. 15, 1973. The following issues were framed in the case:--

1) Whether defendant No. 1 executed the agreement dt. 11-8-1973 in favour of the plaintiffs and received Rs. 7,500/- as advance amount? OPP

2) Whether the plaintiffs have been ready and willing to perform their part of the contract? OPP

3) Whether defendant No. 1 committed breach of agreement? OPP

4) Whether Waryam Singh defendant executed the agreement in favour of defendants Nos. 2 to 7 for Rs. 35,000/- and received Rs. 5,000/- as advance amount. If so its effect?

5) Whether defendants Nos. 2 to 7 are bona fide purchaser of the suit land for consideration and without notice? OPD

6) Whether the plaintiffs are entitled to specific performance of the agreement in question. If so on what terms? OPP

7) Whether the plaintiffs are entitled to damages. If so how much? QPP

4A or 7A) What is the mortgage amount of the previous mortgages prior to the agreement in question dt. 11-8-1973, concerning the land in dispute and what is its effect? OPP (Objected to)

8) Relief.

On the evidence led, the trial Court decided all the issues in favour of the plaintiffs and decreed the suit.

Issue No. 1:--

Exhibit P.1 is the agreement executed by Waryam Singh in favour of the plaintiffs. Apart from the fact that Waryam Singh had admitted execution of this agreement, sufficient evidence has been produced by the plaintiffs to prove this agreement. PW 1 Mohan Lal Scribe, PW 2 Jamna Dass and PW 3 Ram Niwas, the attesting witnesses of this agreement Exhibit P.1, have proved this document. They have also deposed about payment of Rs. 7,500/- to Waryam Singh at the time of execution of this agreement. Since no evidence was produced by the defendants in rebuttal, there is no reason to disbelieve the statements of the three witnesses aforesaid who have proved due execution of the agreement and passing of the earnest money of Rs. 7,500/- to Waryam Singh defendant. Finding of the trial Court on issue No. 1 is, therefore, affirmed.

Issues Nos. 2, 3 and 4:--

These issues can be disposed of together. Exhibit D. 1 is the agreement to sell the disputed land executed by Waryam Singh in favour of other defendants Nos. 2 to 7. Vide this agreement the land was agreed to be sold for Rs. 35,000/- and a sum of Rs. 5,000/- was received as earnest money by Waryam Singh. This agreement is dt. Aug. 27, 1973, whereas Exhibit P. 1 -- agreement in favour of the plaintiffs is dt. Aug. 11, 1973, as held under issue No. 1 above. Exhibit P.1 has been proved by the statements of Surinder Kumar (DW1), Scribe, Madan Lal DW2 and Niranjan Singh DW 3, its marginal witneses. Relevant entry was made in the register of the Scribe which is Exhibit D.2. The trial Court rightly held in view of the evidence aforesaid that Waryam Singh had agreed to sell the land to defendants Nos. 2 to 7 after he had agreed to sell the land in favour of the plaintiffs. Under issue No. 4 the said finding is affirmed. Since immediately after entering into an agreement to sell land in favour of the plaintiffs, Waryam Singh defendant entered into another agreement to sell in favour of other defendants, obviously, he committed breach of the earlier agreement. His intention not to execute the sale deed in favour of the plaintiffs thus became clear. Further the question whether the plaintiffs were ready and willing to perform their part of the contract. Gurnam Singh plaintiff appeared as PW 7 and deposed about it. On the other hand Waryam Singh abstained from appearing as a witness. PW 7 Gurnam Singh categorically stated that they were always ready to purchase the land and they were also willing for the same. They were taking land on theka and were keeping buffaloes. Their land was in the name of their father and they were in a position to purchase the land. The defendants were not in a position to controvert the aforesaid evidence. Thus, it is held that the plaintiffs'' were always ready and willing to perform their part of the contract.

Shri Arun Jain, Advocate for the appellants, has argued that the plaintiffs did not plead and prove that they tendered the sale consideration amount to the defendants to call upon them to execute the sale deed in their favour. Thus their suit is liable to be dismissed on that ground. Reference has been made to Form Nos. 47 and 48 contained in Schedule I attached to the Civil P.C. prescribing therein that in the frame of the suit specific performance such a plea, as aforesaid, should be contained. Reliance has also been placed on the decision of this Court in Dhanna Singh v. Malkiat Singh (1983) 85 PLR 275. On the other hand it has been argued that after the new Specific Relief Act has come into force, the Act does not provide for any such condition to deny the relief of specific performance. Particulars given in the Forms attached to the Schedule in the Civil P.C. to be mentioned in the plaint are only by way of guidence. Non-observance of such Forms cannot in any manner deny the party the relief otherwise due under the law. In my view the ratio of the aforesaid decision otherwise cannot be applied to the facts of the case in hand. Present is a case where the defendant committed breach of the contract within a short span of time. After entering into an agreement with the plaintiff the defendant-Waryam Singh entered into another agreement of sale of the land in dispute in favour of the other defendants who have been impleaded as parties. No useful purpose would have been served thereafter to offer the entire sale consideration to Waryam Singh defendant and to call upon him to execute the sale deed in favour of the plaintiffs. His intention not to do so per se was apparent on his entering into the latter agreement for a higher price. The only course open to the plaintiffs was to straightaway file the suit for specific performance of the contract. In appeal such a question could not be allowed to be raised for the first time. In case it had been raised in the trial Court at the initial stage, the plaint could be ordered to be amended and the plaintiffs could be expected to lead evidence.

It has been further argued by learned counsel for the appellants that in the contract -- Exhibit P. 1 there was a condition precedent to be followed by the plaintiffs before filing the suit for specific performance and that was to get the land redeemed on payment of the mortgage amount. Since the mortgages were not paid the mortgage amount before filing of the suit the same could not be decreed. In support of this contention reliance has been placed on the decision of the Andhra Pradesh High Court in Pudi Lazarus v. Rev. Johnson Edward AIR 1976 AP 243. In this case an agreement to sell was entered into with the stipulation that the vendee was to discharge different debts of the vendor including a mortgage debt before execution of the sale deed and the balance amount was payable at the time of the execution of the sale deed. The plaintiff was given a notice in this respect. On his repudiation of the contract the property was re-sold, In such circumstances it was held that in spite of the repudiation of the contract by the defendant, the plaintiff in a suit for specific performance of the agreement was required to discharge the liability under the agreement including the mortgage debt before asking specific performance of the contract. In para 8 of the judgment it was observed as under:--

"It is well settled that a plaintiff, who seeks specific performance must, in his turn perform all the terms of the contract which he expressly or by implication ought to have performed at the date of the action. Where a condition or essential term ought to have been performed by the plaintiff at the date of the suit, the Court does not accept his undertaking to perform in lieu of performance but will dismiss the claim."

Reliance was placed on the decision of the Privy Council in AIR 1933 233 (Privy Council) on the same subject. The matter was under consideration of the Supreme Court in R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, , wherein it was held in a suit for specific performance of the contract as under:--

"Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned."

In that case the defendant with imperfect title had agreed to sell his lease-hold rights. One of the conditions of the lease was that he was to obtain sanction of the authority for transfer. He forfeited the earnest money by cancelling the contract without applying for sanction. The plaintiff filed a suit for specific performance and it was held, in the circumstances of that case, that the plaintiffs was ready and willing to perform his part of the contract as there was no material on the record to show that at any stage the plaintiff was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained. The ratio of the decision of the Andhra Pradesh High Court referred to above cannot be applied to the facts of the case in hand. The mortgages are also parties in the suit brought by the plaintiffs and simultaneously order could be passed for payment of the mortgage amount and deposit of the balance of the sale consideration for execution of the sale deed. As already observed above, within a short span of time of execution of the agreement to sell in favour of the plaintiff, the defendant agreed to sell the same land to other defendants. This amounted to clear breach of the agreement by defendant No. 1. Thus findings of the trial Court on issues Nos. 2, 3 and 4 are also affirmed holding that plaintiffs had been ready and willing to perform their part of the contract and defendant No. 1 committed breach of the agreement and Waryam Singh defendant executed agreement in favour of defendants Nos. 2 to 7.

Issue No. 5:--

Since no sale deed has been executed in favour of defendants Nos. 2 to 7 by Waryam Singh defendant, these defendants cannot be held to be purchasers of the land, much less bpna fide, or for consideration. Finding of the trial Court on issue No. 5 is, therefore, affirmed.

Issue No. 6:--

As already observed above, sufficient evidence was produced by the plaintiffs that they were ready and willing to perform their part of the contract which evidence was not controverted by Waryam Singh defendant who even did not enter into the witness-box. There is no reason to deny the relief of specific performance of the agreement in favour of the plaintiffs.

Learned counsel for the appellants also referred to the decision of the Allahabad High Court in Bishambhar Nath Agarwal Vs. Kishan Chand and others, . It was observed as under (at page 71):--

"If any agreement states that a particular act relating to the furtherance of the contract has to be done in a particular manner, then it should be done in that manner and it is not open to the concerned parties to chalk out his own manner of performing his part of contract."

In that case in a compromise entered into between the parties the plaintiff was required to make payment by crossed account-payee draft in favour of the defendant. In that case it was held that any amount of readiness in any other manner on the part of the plaintiff by making arrangement for the money, giving notice to defendant, sending telegram and remaining present at the Sub-Registrar''s office will not amount to a due performance of the contract on his part. The position in the present case is entirely different as already enumerated above. It is the defendant Waryam Singh who had entered into a subsequent agreement to sell the land in favour of defendants Nos. 2 to 7 much before the date fixed for execution of the sale deed in favour of the plaintiffs. As already stated above, the payment of the mortgage amount could be ordered in the suit itself for which a specific issue No. 4A was framed to determine the mortgage amount. The plaintiffs were, therefore, rightly held to be entitled to specific performance of the agreement.

Issue No. 4A:--

The trial Court held that under the mortgage an amount of Rs. 10,500/- was to be paid. Nothing has been urged in this appeal to challenge this finding which is affirmed.

Issue No. 7 :--

No evidence was produced regarding the damages suffered by the plaintiff on account of breach of the contract. Finding of the trial Court on issue No. 7 is, therefore, affirmed.

For the reasons recorded above, this appeal is dismissed with costs. The judgment and decree of the trial Court are affirmed allowing specific performance of the agreement. The plaintiffs were allowed two months'' time to deposit the amount of sale consideration out of which the mortgage amount, as aforesaid, would be paid to the mortgages and the remaining amount to Waryam Singh defendant. On doing so Waryam Singh defendant would execute the sale deed in favour of the plaintiffs. On his failure the plaintiffs would be entitled to get the sale deed executed through Court.

Appeal dismissed.