Orissa High Court
Debendranath Mohanty vs Annapurna Mohanty on 16 October, 1995
Equivalent citations: AIR 1996 ORISSA 89, (1995) 80 CUT LT 1015, (1995) 2 ORISSA LR 549, (1996) 1 CIVILCOURTC 228, (1996) 1 CIVLJ 512, (1995) 4 CURCC 313, (1996) 1 LJR 660
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. These two appeals are directed against the judgment and decree passed by the Additional District Judge, Puri, in Title Appeal No. 35/74 of 1982/1981 in which he allowed the appeal in part and set aside the decision of the trial Court relating to specific performance of the contract. Both the parties in the suit have filed independent appeals against the said decision. While Second Appeal No. 194/83 has been filed by the plaintiff, Smt. Annapurna Mohanty, Second Appeal No. 173/83 has been filed by the defendant. Debendranath Mohanty.
2. Smt. Annapurna Mohanty filed the suit, O.S. No. 25/6 of 1981/79-1 for specific performance of contract of sale alleging, inter alia, that on 4-4-1975 the defendant being in need of money received Rs. 4,000/- from her and executed an agreement (Ext. 1) to sell the plaint schedule land in her favour for Rs. 5,000/- within a year on receipt of the balance amount of Rs. 1,000/-. On execution of the agreement, the defendant put her in possession of the land and she has been in its possession since then. Despite her repeated requests to accept the balance consideration money of Rs. 1,000/- and execute the sale deed, the defendant avoided to do so. She, therefore, filed the suit with the prayer for a direction to the defendant to execute the sale deed transferring the suit land in her favour on acceptance of Rs. 1,000/-, or in the alternative, to direct the defendant to refund Rs. 4,000/- with interest at 12 per cent per annum.
3. The defendant denied execution of the agreement (Ext. 1). His case was that on 4-4-1975 being in need of money, he took a loan of Rs. 800/- from plaintiff's husband, who was a money-lender, and on his insistence, he put his signature on a blank stamp paper and left it with him. Since interest on the loan was accumulating, he executed a sale deed for an area of Ac.O.34 of land in favour of the plaintiff on 27-10-1975 (Ext. 2) in full satisfaction of the loan together with interest. On 23-10-1978, the defendant sold Ac.O. 40 of land to one Nirupama Dei for Rs. 1500/-which the plaintiff's husband wanted to purchase, but apprehending that he may not pay good consideration for the property, the defendant did not agree to sell the property to him and sold it to Nirupama Dei. At this, the plaintiff's husband became annoyed and created a spurious deed of agreement using the blank stamp paper signed by him (defendant). The defendant denied that possession of the suit land had been delivered to the plaintiff and asserted that he is continuing in possession of it.
4. The trial Court framed 5 issues of which Issue No. 2 was "Is the plaintiff entitled to relief of specific performance of contract and the contract is genuine?" and Issue No. 5 was "whether defendant received Rs. 4000/-and executed the deed of agreement?" On sifting the oral and documentary evidence on record, the trial Court held that the defendant duly executed the deed of agreement (Ext. 1) after receiving Rs. 4,000/- and Ext. 1 was not a spurious document. He believed the evidence of P.W. 1, Jajatikesari Mohanty, husband of the plaintiff, that the plaintiff had approached the defendant with the balance sum of Rs. 1,000/- within the stipulated period to get the sale deed executed and had all along remained ready and willing to perform her part of the contract. The trial Court further held that the plaintiff was entitled to the relief prayed for in the plaint. Accordingly, the suit was decreed and the plaintiff was directed to pay the balance sum of Rs. 1,000/-to the defendant who in his turn was to execute the sale deed in question in favour of the plaintiff in respect of the suit land within two months from the date of the judgment, failing which the plaintiff was to move the Court for getting the sale deed executed.
5. The decision of the trial Court was challenged by the defendant in appeal which was allowed in part. The learned Additional District Judge on discussing the evidence on record and the probabilities of the case, recorded the following findings:
"....considering all aspects of the matter, I have no doubt in my mind that the defendant executed the agreement (Ext. 1), he being a needy man all throughout."
Regarding delivery of possession of the land, his finding was:
"....All these do not lead me to hold that the defendant actually delivered possession of the lands as per Ext. 1 on the day following execution as alleged by the plaintiff."
He rejected the plea of the defendant that the plaintiff was a regular money-lender and that the suit was not maintainable since the precondition for filing a suit by a money-lender was not fulfilled. Considering the question whether in the facts and circumstances of the case, the plaintiff's prayer for specific performance of the contract should be granted, the Court observed:
". . . . .Although in my opinion, execution of Ext. 1 and payment of Rs. 4000/- thereunder to the defendant by the plaintiff stand proved, on this ground alone specific performance of contract may not be ordered. At the same time it would be in the interest of justice to direct refund of Rs. 4,000/- by the defendant to the plaintiff which was received by the former under Ext. 1. When the defendant had intentionally given and the plaintiff had intentionally accepted an unidentifiable piece of land as the subject-matter of agreement for sale, I am not inclined to allow any interest to the plaintiff on the principal sum of Rs. 4,000/- advanced to the defendant...."
On this finding, he set aside the decision of the trial Court in decreeing the suit for specific performance of contract for sale and directed the defendant-appellant to return back Rs. 4,000/- taken on 4-4-1975 to the plaintiff within three months of the judgment. Therefore, the plaintiff has filed the appeal against the judgment of the lower appellate court rejecting the prayer for specific performance of the contract of sale and the defendant has challenged the finding that he had received Rs. 4,000/- from the plaintiff towards consideration money of the suit lands on 4-4-1975.
6. On the case of the parties discussed above, the moot question that arises for determination is whether the lower appellate court was right in rejecting the plaintiff's prayer for specific performance of the eon-tract for sale of the suit land on the ground that the description of the land in the agreement was vague and unspecific. It is relevant to note here that the lower appellate court found that while describing the land in question in the agreement (Ext. 1), boundaries on two sides only were stated. If the above question is answered in the negative, then the decision of the lower appellate court is to be reversed and that of the trial court is to he restored. On the other hand, if the question is answered in the affirmative, then the further question to be considered is whether the concurrent finding recorded by both the courts below that the defendant had received Rs. 4,000/- from the plaintiff on 4-4-1975 in pursuance of the agreement (Ext. 1) is to be interfered with.
7. In the case of Prakash Chandra v. Angadlal and Ors., AIR 1979 SC 1241, the Apex Court ruled that the ordinary rule is that specific performance should be granted; it ought to be denied only when equitable considerations point to its refusal and the circumstances show that the damages would constitute an adequate relief. In the present case, the conduct of the plaintiff has not been such as to disentitle her to the relief of specific performance. Both the courts below held that the plaintiff had paid Rs. 4,000/- to the defendant at the time of execution of the agreement (Ext. 1). The trial court had specifically found that the plaintiff had approached the defendant with the balance amount of Rs. 1,000/- within the stipulated time to get the sale deed executed and had all along been ready and willing to perform her part of the contract and this finding was not disturbed by the lower appellate court. It has not been found by the courts below that the plaintiff secured an unfair advantage over the defendant when he entered into the agreement, nor has it been found that the performance of the contract would involve the defendant in some hardship which he did not foresee. Therefore, judged in the light of Section 20 of the Specific Relief Act there is no valid reason for not exercising the discretion to grant the relief of specific performance of the contract in her favour. The only reason stated by the lower appellate court for refusing the prayer for specific performance of the contract is that the description of the land given in the agreement was unspecific. This objection had neither been raised by the defendant in his pleadings nor any such point was urged before the trial court. It was also not the case of the defendant that the stipulations and terms of the agreement being uncertain, there was no contract at all. In my considered view, the reason stated by the lower appellate court is not sufficient to deny the prayer for specific performance of the contract, particularly in view of the settled position of law that the ordinary rule is that specific performance should be granted.
The Supreme Court in the ease of Kartar Singh v. Harjinder Singh and Ors., AIR 1990 SC 854, held that specific performance can be granted in respect of the vendor's share in properties held jointly by him (vendor) and his sister; specific performance in respect of the share of property cannot be refused on the ground that the property will have to be partitioned. In the said case, the Court further held that specific performance cannot be refused merely because the properties are scattered at different places.
8. Testing the case in hand in the light of the principles enunciated by the Apex Court in the decided cases noted above, it is my considered view that in the facts and circumstances, the lower appellate court erred in refusing the plaintiffs prayer for specific performance of the contract. In view of this finding, the question of considering the direction of the lower appellate court for refund of consideration money does not arise.
9. In the result, Second Appeal No. 194 of 1983 is allowed; the judgment and decree passed by the lower appellate Court are set aside and those of the trial Court are confirmed. Second Appeal No. 173 of 1983 is dismissed.
Parties will bear their respective costs in this Court.