Karnataka High Court
Shri.Ravindra Shantinath Chougule vs Shri.Mahesh Arjunsa Kalpavruksha @ ... on 6 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A.No.100220/2015 (SP)
BETWEEN:
SHRI RAVINDRA SHANTINATH CHOUGULE,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE & HORTICULTURIST,
R/O PLOT NO.7264, SECTOR 10, ANJENEY NAGAR,
MAL MARUGI EXTENSION, BELAGAVI-590016.
.. APPELLANT
(BY SRI.G.R.GURUMATH SENIOR COUNSEL FOR
SRI.SANJAY S.KATAGERI, ADV.)
AND:
SHRI MAHESH ARJUNSA KALPAVRUKSHA @ MIRAJKAR,
AGED AVOUT 39 YEARS, OCC: AGRICULTURE,
R/O 107, DANE GALLI,
SHAHAPUR, BELAGAVI-590003.
.. RESPONDENT
(BY SRI.ANANT MANDGI, SENIOR COUNSEL FOR
SRI.SANGRAM S.KULKARNI & SRI.V.P.KULKARNI, ADVS. C/R)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING
THAT JUDGMENT AND DECREE DATED 01.08.2015 IN
O.S.NO.100/2010 PASSED BY THE LEARNED I ADDITIONAL SENIOR
CIVIL JUDGE, BELAGAVI BE KINDLY SET ASIDE IN SO FAR AS
REFUSING THE MAIN RELIEF OF SPECIFIC PERFORMANCE OF THE
CONTRACT AND THE SAME BE KINDLY BE ALLOWED BY ALLOWING
THE APPEAL AND CONSEQUENTLY THE SUIT IN O.S.NO.100/2010
BE DECREED WITH COST GRANTING THE MAIN RELIEF OF AS
PRAYED THEREIN.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, RAJENDRA BADAMIKAR, J.
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/plaintiff under Section 96 of CPC challenging the judgment and decree passed in O.S.No.100/2010 dated 01.08.2015 on the file of the I Additional Senior Civil Judge, Belagavi whereby the trial court has rejected the prayer of the plaintiff for specific performance but granted alternative relief of refund of earnest money.
2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court.
3. Brief factual matrix leading to the case are as under:
The plaintiff has filed a suit for specific performance of contract dated 12.09.2007 and 20.09.2007 pertaining to the suit schedule property. It is asserted that 3 defendant is the owner in possession of the suit schedule property and due to financial difficulties, he offered to sell the suit schedule property. The plaintiff intended to develop the horticulture approached the defendant and after negotiation the price of the property was fixed at Rs.5,20,000/- per acre including the structure.
Accordingly, an agreement of sale was entered on 12.09.2007 in the presence of two witnesses. It is also contended that defendant has received Rs.2,10,000/- as earnest money by executing the agreement of sale by putting his signature on 20.09.2007. It is further asserted that, it was agreed between the parties that defendant should clear the encumbrance of Ashray Credit Society and after clearance of encumbrance, the defendant was required to inform the same to the plaintiff and thereafter within two months the sale deed is required to be executed by the defendant. According to the plaintiff, some supplementary clause is inserted in agreement by handwriting incorporating that, if the plaintiff fails to get the sale deed registered within two 4 months, the defendant is at liberty to sell the suit schedule property to others and return the earnest money. That the plaintiff was all along ready and willing to perform his part of contract and requested the defendant to complete the sale transaction by accepting the balance sale consideration, but the defendant went on postponing the same. Hence, he got issued legal notice dated 27.09.2008 which was replied on 06.10.2008 contending that time was the essence of the contract. Thereafter, the plaintiff has got issued second legal notice on 13.12.2008 and the defendant gave evasive reply. Hence, the plaintiff claims that he constrained to file the present suit.
4. After service of summons, the defendant has appeared through his counsel filed his written statement admitting the agreement of sale, but he contended that suit is not maintainable, as the alleged sale agreement came to be forfeited as on the date of institution of the suit by virtue of specific clause mentioned in it. The 5 defendant admits the terms of agreement between the parties, but he denied that as per the terms of the agreement he was required to clear encumbrance of Ashray Credit Society and inform the same to the plaintiff and thereafter within two months, the sale deed was required to be executed. He admits that supplementary clause was incorporated and also receiving two legal notices and contends that he has properly replied the same. He denied that plaintiff was all along ready and willing to perform his part of contract and he has approached the defendant regularly and defendant went on postponing the same. He further contended that plaintiff has approached the court with malafide intention as he being real estate agent, he is in the habit of creating documents. He also disputes the financial capacity of the plaintiff to purchase the suit schedule property. Hence, he contended that as per the terms of the agreement, after expiry of two months, the agreement automatically stands cancelled and suit is 6 barred by time and as such, sought for dismissal of the suit.
5. On the basis of the pleadings, following issues have been framed.
i) Whether the plaintiff proves that defendant had entered into agreement of sale on 12.09.2007 and agreed to sell the suit property to the plaintiff for sale consideration of Rs.5,20,000/-?
ii) Whether the plaintiff proves that on the date of agreement, defendant had received earnest money of Rs.2,10,000/- on 20.09.2007?
iii) Whether the plaintiff proves that he is always ready and willing to perform his part of the contract??
iv) Whether the plaintiff is entitled for order of specific performance of contract?
OR
v) Whether the plaintiff is entitled for refund of Rs.2,10,000/- with interest at the rate of 18% p.a.?
vi) Whether the plaintiff is entitled for damage?
vii) What order/decree?
6. Plaintiff was got examined as P.W.1 and one witness was examined as P.W.2 and he placed reliance 7 on 41 documents as Exs.P1 to P41. The defendant was got examined himself as D.W.1 and he placed reliance on 7 documents as Exs.D1 to D7.
7. After hearing the arguments, the learned Senior Civil Judge has answered issue Nos.1 and 5 partly in the affirmative, issue No.2 in the affirmative, but issue Nos.3, 4 and 6 were answered in the negative and thereby decreed the suit in part. However, he has denied the relief of specific performance but ordered for refund of earnest money of Rs.2,10,000/- with interest at 10% p.a. from the date of suit till realization.
8. Being aggrieved by this judgment denying the specific performance, the plaintiff has approached this court.
9. Learned senior counsel appearing for the appellant would contend that judgment and decree under appeal is illegal arbitrary and against the facts and circumstances of the case. He would contend that entire approach of the trial court in refusing the decree for 8 specific performance of contract on the ground that time is essence of contract is erroneous finding. He would also contend that encumbrance was not removed by the defendant and thereby time cannot be termed as essence of contract. He would also assert that there is no dispute regarding execution of the agreement and terms of the agreement. He would also contend that observations of the trial court regarding interpolation of the agreement incorporating the signature of P.W.2 is an erroneous finding as it does not affects of the merits of the case. He would also contend that agreement is proved and payment of Rs.2,10,000/- is admitted. That the observations of the trial court that Ex.D4 is marked in view of the order passed by High Court is also a wrong observation. He would further contend that, when the court has observed that there is due execution of the agreement, it should have granted specific performance as the compliance of Sections 16 and 20 of the Specific Relief Act has been done and plaintiff was all along ready and willing to perform his part of contract. He would also 9 contend that trial court has erred in observing that time was essence of the contract and he placed reliance on number of citations in support of his contention and argued that time was never essence of contract and it was depending on the removal of encumbrance over the suit property which the defendant got removed subsequent to filing of the suit and hence, he would contend that equity is in his favour and hence, he would seek for allowing the appeal and prayed for granting the relief of specific performance.
10. Per contra, learned senior counsel appearing for the respondent would contend that basic principle of law is that, party who approaches the court shall approach the court with clean hands and in order to get benefit under Section 16(c)(ii) of the Specific Relief Act, conduct of the party should be blemishless throughout. He would also contend that in the plaint itself, there is a specific pleading that agreement was attested by two witnesses, but the agreement disclose that signature of 10 third witness i.e., P.W.2 was obtained subsequently without the knowledge of the defendant and the same witness came to be examined only in order to prove that time is not essence of the contract in respect of the agreement which is not part of the written agreement clause between the parties regarding removal of encumbrance and intimating the plaintiff and thereafter two months time for execution of the sale deed. He would also contend that contract is terminated as per Ex.P12 and there is no prayer for declaration in this regard for setting aside the cancellation. He would also contend that as per the condition of the agreement, the earnest money is required to be paid within two months, that was not done by the plaintiff and payment of earnest money and execution of the sale deed are two different aspects and as such, time is essence of contract. He would also contend that plaintiff may be ready, but was not willing to perform his part of contract and he has failed to prove that he was/is ever ready and willing to perform his part of contract. It is also asserted that 11 though the agreement was dated 20.09.2007 and within two months the sale deed has to be executed. However, the plaintiff has issued notice for the first time on 27.09.2008 after more than one year, which clearly discloses that, he was never ready and willing to perform his part of the contract. He would also contend that as per Section 55(5) of the Transfer of Property Act, 1882, he could have deducted the encumbrance amount and paid the balance consideration to show his bonafides by way of adjustments, but he did not do the same. Hence, the readiness and willingness is not established. He would also contend that in the legal notice there was a demand for map which is not a part of the contract, which amounts to alteration of the clause of the agreement and there is no explanation on the part of the plaintiff as to why he interpolated the agreement by inserting signature of P.W.2 subsequently. He would further contend that learned senior counsel for the appellant admits during the course of arguments that there is an interpolation and as such, question of he 12 seeking equity does not arise at all. He would also contend that when there is an interpolation by inserting signature of P.W.2 and the same witness was examined, which disclose the intention of the plaintiff and he wanted to prove a different clause which is not in the earlier agreement and a new case is made out which amounts to material alteration. As such, he would seek for dismissal of the appeal.
11. We have heard the arguments advanced by the learned senior counsel Sri.G.R.Gurumath for the appellant and learned senior counsel Sri.Anant Mandgi for the respondent at length. We have also perused the records of the trial court meticulously. Now the following points would arise for our consideration:
i) Whether the defendant proves that
plaintiff has interpolated the
agreement of sale dated
12.09.2007/20.09.2007 by inserting
signature of P.W.2 subsequently?
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ii) Whether the plaintiff was/is ready and
willing to perform his part of contract?
iii) Whether the time was essence of the contract?
iv) Whether the judgment and decree passed by the trial court is erroneous, arbitrary and suffers from infirmity so as to call for any interference by this court?
12. The plaintiff has filed the suit for specific performance of contract. According to the plaintiff, defendant being the owner of the suit schedule property has agreed to sell the suit property at the rate of Rs.5,20,000/- per acre including the constructed building. The agreement is reduced into writing on 12.09.2007, but it came to be executed on 20.09.2007 and Rs.2,10,000/- was paid as earnest money. The total extent of suit schedule property is 5 acres 33 guntas and the agreement was at the rate of Rs.5,20,000/- per acre. 14 These terms are undisputed. It is also undisputed fact that though the agreement was reduced into writing on 12.09.2007, it was signed on 20.09.2007. It is also an admitted fact that a supplementary clause was inserted on 20.09.2007 to the effect that, if the purchaser fails to get the sale deed executed within stipulated time, then owner is at liberty to cancel the agreement of sale and sell the same to others and later he is required to refund the earnest money without interest. The agreement is marked at Ex.P1 and Ex.D4 is the copy of the said agreement which is handed over to the defendant. The plaintiff further asserted in the plaint there was an agreement that defendant should clear all encumbrance of Ashraya Credit Society and intimate the plaintiff. To substantiate this contention, plaintiff is relying on the evidence of P.W.2. According to the plaintiff, after clearing the encumbrance, the defendant was required to intimate the same to the plaintiff and then within two months sale deed was required to be executed. This is a specific story put forward by the plaintiff. But on perusal 15 of the Ex.P1, it is evident that there is no such condition that defendant is required to clear the encumbrance of Ashraya Credit Society and intimate the same to the plaintiff and then within two months, the sale deed is required to be executed. A simple condition was incorporated that before the stipulated period the encumbrance of Ashraya Credit Society is required to be discharged. The other condition regarding payment of balance consideration is that, balance consideration was required to be paid within two months from the date of the agreement. Though agreement is dated 12.09.2007, however, it was executed on 20.09.2007. There is a specific condition that balance consideration was required to be paid within two months from the date of execution of the agreement. Admittedly, the balance consideration was not paid within the stipulated period of two months.
13. It is also the contention of the plaintiff that encumbrance of Ashraya Credit Society was not discharged and it was discharged only after institution of 16 the suit, but the condition of the agreement was regarding payment of balance consideration within two months. On this point, learned senior counsel for the respondent vehemently argued and contend that this is a relevant clause of agreement which establish that time was essence of the contract.
14. The defendant has also attacked the claim of the plaintiff on the ground that document was interpolated as the plaintiff has inserted the signature of P.W.2-R.B.Patil on Ex.P1 subsequently. In Ex.P1 the signature of P.W.2 was found, but it does not find place in Ex.D4 which is the Xerox copy of Ex.P1. Apart from that, the plaintiff has examined P.W.2 in support of his contention, who deposed that he was present during transaction and the document was executed in his presence on 20.09.2007. It is interesting to note here that, though document was prepared on 12.09.2007, it was signed on 20.09.2007. The supplementary clause/additional term was also incorporated on 17 20.09.2007 itself. Interestingly, this additional term does not find signature of P.W.2, but only in original agreement his signature was inserted. This witness in his evidence deposed that as per the terms of the agreement, it was decided that defendant should clear loan of Ashraya Credit Society within two months and inform the same to the plaintiff. Admittedly, this clause does not find place in Ex.P1 regarding intimation to the plaintiff regarding clearance of loan on the suit property. Admittedly, P.W.2 is the employee of the plaintiff which is evident from his cross-examination. Hence, this witness was introduced subsequently, as in the plaint itself there is specific pleading that agreement is signed by two witness, but P.W.2 is a third witness. As such, it is evident that his signature was inserted only to put forward a new clause of agreement regarding discharge of loan within two months and then intimation to the plaintiff, which does not find place in the original agreement. As per Section 91 of the Evidence Act, no oral evidence is permissible to alter, vary or contradict 18 the terms and conditions reduced into writing between the contesting parties. But in the instant case, the plaintiff is trying to make out a new case and his case does not fall under exceptions provided under Section 92 of the Evidence Act. Hence, it is done with an intention to vary the terms and conditions of agreement between the parties and as such, it affects the rights of the defendant and it prejudices the interest of the defendant. As such, it is an interpolation or manipulation of Ex.P1.
15. Learned senior counsel for the appellant would admit that there is an interpolation or insertion of signature, but he contends that it does not affect the rights of the parties in any way. However, when the said witness has deposed against the terms and conditions of the contract and there is an attempt to deviate the terms of the contract, admittedly, it affects the rights of the defendant. Hence, the said argument advanced by the learned senior counsel for the appellant cannot be accepted.
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16. In this context, learned senior counsel for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Loonkaran Sethia etc. Vs. Mr.Ivan E.John and Others etc. reported in AIR 1977 SC 336 and argued that, if the alterations in the deed of agreement were not material alterations, in that event, it will not render agreement void. On the contrary, the same decision is also relied on by the learned senior counsel for the respondent. He invited the attention of the court to paragraph 23 of the said judgment and argued that the effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed, when alteration is a material alternation. The said decision relied on by both learned senior counsels would assist the respondent/defendant rather than that of appellant/plaintiff. In the instant case, if a simple signature was inserted things would have been different, but the plaintiff has examined the witness as P.W.2 instead of examining other witness only to insert a new 20 condition regarding discharge of the loan of Ashrya Credit Society and intimating the plaintiff which was not there in the original agreement.
17. No doubt in the agreement there is a simple clause that prior to stipulated period the encumbrance is required to be discharged. However, the agreement also mandates that balance consideration is required to be paid within two months and admittedly, the said amount is not paid. As such, the argument of the learned senior counsel for the appellant that rights of the defendant are not affected by insertion of signature of P.W.2 and it is inconsequential holds no water and it amounts to material alteration in the agreement. The learned senior counsel has further argued regarding balancing equity, but fundamental principle of law is that, a party should approach the court with clean hands. The plaintiff is not prepared to explain as to under what circumstances he was compelled to insert the signature of P.W.2 without 21 the knowledge of the defendant. Hence, it is material alteration which amounts to cancellation of agreement.
18. The plaintiff all along specifically asserted that he is/was ready and willing to perform his part of contract. No doubt there is pleading to this effect in his plaint, however, mere pleading is not suffice and the plaintiff is required to take proper positive steps in this regard. Admittedly, agreement is dated 20.09.2007 and within two months the entire balance consideration is required to be paid as per the clause of the agreement. But the plaintiff after getting executed the agreement and after payment of Rs.2,10,000/-, he did not take any steps for payment and first time he issued legal notice after one year as per Ex.P9. The stipulated time in the agreement for payment of balance consideration itself is two months. Grant of specific performance is governed under Section 16 of the Specific Relief Act, which reads as under:
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"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has 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 terms the performance of which has been prevented or waived by the defendant. Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
19. Section 20 deals with discretion of the court in granting the relief of specific performance, which reads as under:
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree 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 23 principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-
performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--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).
Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts 24 or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
20. A party who seeks the relief of specific performance, which is a discretionary relief, shall approach the court with clean hands and his conduct should blemishless throughout. But in the instant case, the conduct of the plaintiff disclose that he manipulated the agreement of sale itself and pursuant to manipulation, he tried to put up a new clause by examining P.W.2 who was not a witness to the agreement initially. Normally, the courts are bound to grant specific performance, but it is again depending upon the conduct of the parties and especially when readiness and willingness is not proved, the said party is not entitled for specific performance. Though plaintiff has averred, his readiness and willingness is not established as he did not take steps for payment of balance consideration within two months from the date of execution of the agreement. He has paid a small amount 25 of Rs.2,10,000/- and the agreement is in respect of nearly 6 acres at the rate of Rs.5,20,000/- per acre. He has not paid even 10% of the sale agreement and though he tried to prove that he has capacity to make payment, but said transaction regarding his deposits and encashment etc. were subsequent to stipulated period in the agreement. He tried to rely on the deposits of his wife but his wife was not examined to show her willingness. Apart from that, within two months he was not issued any notice expressing his willingness in this regard.
21. Learned counsel for the appellant contended that defendant did not discharged loan of Ashrya Credit Society, which prevented enforcement of the agreement. But in this context, learned senior counsel for the respondent has invited the attention to Section 55(5)(b) of Transfer of Property Act, which reads as under:
55. Rights and liabilities of buyer and seller.--
In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or 26 such of them as are applicable to the property sold:--
(1) xxxx
(a) xxxx;
(b) xxxx;
(c) xxxx;
(d) xxxx;
(e) xxxx;
(f) xxxx;
(g) xxxx;
(2) xxxx;
(3) xxxx;
(4) xxxx;
(a) xxxx;
(b) xxxx;
(5) The buyer is bound--
(a) xxxx;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) xxxx;
(d) xxxx.
22. As per proviso to Section 55(5)(b), the buyer is at liberty to retain out of the purchase-money the amount of any encumbrance on the property existing as on the date of the sale, and shall pay the amount so retained to the persons entitled thereto. In the instant case also nothing prevented the plaintiff to pay the entire consideration within two months to the defendant by 27 retaining only the encumbrance amount pertaining to Ashrya Credit Society to show is bonafides. But he did not take any steps in this regard. He has issued notice to express his readiness only after one year and for one year he did not take any steps nor issued any notice within two months, though condition in the agreement is regarding payment of consideration within two months only. Hence, it cannot be said that plaintiff was/is ever ready and willing to perform his part of contract all along.
23. Learned counsel for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Balasaheb Dayanandeo Naik (dead) vs Appasaheb Dattatraya Pawar reported in (2008) 4 SCC 464 and contended that general presumption is that time is not the essence of contract unless contrary intention is expressed in unequivocal language in the agreement itself. There is no dispute regarding the principles enunciated in the said decision. However, in the instant case, though time is not essence of contract 28 for execution of the sale deed, time becomes essence of contract for payment of balance consideration as defendant has offered to sell the suit schedule property to meet his requirement and when he did not get the same, there is no purpose in executing such an agreement.
24. In this context, learned senior counsel for the respondent has placed reliance on the decision of the of the Hon'ble Apex Court in the case of Saradamani Kandappan vs S.Rajalakshmi and Others reported in (2011) 12 SCC 18, wherein it is observed as under:
"Contract and Specific Relief - Time whether of the essence of contract - Determination of with respect to performance of specific term only of contract - Held, question whether time is of essence of performance can be considered either with reference to contract as a whole or with reference to particular term or condition of contract which is breached - Thus, where time was specified for payment of sale price (as in present case) but not in regard to execution of sale deed, held, time will become of the essence only with reference to payment of sale price but not in regard to execution of sale deed - Contract Act, 1872, S.55."29
25. Hence, in the instant case also, the agreement stipulates that time was specified for payment of balance sale price and as such, time is required to be held as an essence of contract. The said principles are directly applicable to the facts and circumstances of the case in hand.
26. Learned senior counsel for the respondent has also placed reliance on the decision of the Hon'ble Apex Court in the case of K.Karuppuraj vs M.Ganesan reported in (2021) 10 SCC 777 and relying on Head Note 'C', he argued that, it is mandatory to grant specific performance, but in the absence of plaintiff taking any steps for retaining encumbrance amount and offering to pay balance consideration, it establish that he was not ready and willing to perform his part of contract.
27. Learned senior counsel for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Balasahed Bayandeo Naik (supra), but that was pertains to execution of sale deed but not 30 payment of balance consideration. As such, the said principles cannot be made applicable to the case in hand, since in the instant case, condition regarding payment of balance consideration was within two months.
28. Learned counsel for the appellant has further placed reliance on the decision of the Hon'ble Apex Court in the case of Aniglase Yohannan v. Ramlatha and Others reported in AIR 2005 SC 3503. But the said principles cannot be made applicable to the facts and circumstances of the case in hand, as in the instant case, the evidence discloses that, though plaintiff has averred regarding his readiness and willingness, his conduct would disclose that he was not ready and willing and he did not made any attempt for payment of balance consideration within two months as agreed by complying the provisions of Section 55 of the Transfer of Proper Act nor issued any notice within the stipulated period. He has also placed reliance on the decision of the Hon'ble Apex Court in the case of Sughar Singh vs. Hari Singh 31 (Dead) through L.Rs. and Others reported in AIR 2021 SCC 5581. But again the facts and circumstances of the case are entirely different. In the instant case, the facts and circumstances disclose that first the plaintiff manipulated the agreement and tried to change the terms of the agreement by inserting signature of P.W.2. Further, he has not offered balance consideration within two months as agreed and first time he has issued notice after one year and considering this conduct, it cannot be presumed at any stretch of imagination that he was/is ever ready and willing to perform his part of contract all along.
29. Learned senior counsel for the respondent has further placed on the decision of the Hon'ble Apex Court in the case of Pramod Buildings and Developers (P) Ltd., v. Shanta Chopra reported in AIR 2011 SC 1424, wherein it is observed as under:
"Specific Relief Act (47 of 1963), S.20, S.16(c) - Agreement to sell - Suit for specific performance - Readiness and willingness - Plaintiff vendee in a suit 32 cannot succeed unless he proved that he was ready and willing to perform the contract - Prayer in plain showed that vendee was not ready to pay entire balance of Rs.34,00,000/- as agreed under agreement of sale but insisted upon vendor to pay municipal taxes before the sale, as condition for sale - If vendee was not willing to pay Rs.34 lakhs at time of sale, he could not claim that it was ready and willing to perform its obligation - Dismissal of suit, proper."
30. In the instant case also by legal notice as per Ex.P9, the plaintiff has demanded map which is not condition of the agreement. The conduct of the plaintiff discloses that he was deviating from terms of the agreement and he was not willing to perform his part of contract. He may be willing but not ready and under such circumstances, the said principles are directly applicable to the facts and circumstances of the case in hand.
31. Learned senior counsel for the respondent has further placed reliance on the decision of he Hon'ble Apex Court in the case of I.S.Sikandar (Dead) by Lrs. vs. K.Subramani and Others reported in (2013) 15 SCC 27, and argued that, when agreement stands terminated as per supplementary clause without seeking relief in this 33 regard, the suit for specific performance is not maintainable. The said principles can be made applicable to the case in hand.
32. Learned senior counsel has also placed reliance on the decision of the Hon'ble Apex Court in the case of H.P.Pyarejan Vs Dasappa (Dead) by Lrs. and Others reported in (2006) 2 SCC 496, wherein the Hon'ble Apex Court has held as under:
"Specific Relief Act, 1963 - S.16(c) r/w Expln.(ii) - Suit for specific performance of contract - Relief - Entitlement to - Requirement therein on the part of plaintiff to aver in plaint and establish the fact that he was always ready and willing to perform his part of the contract - Basic principle behind, held, is that the plaintiff must manifest that his conduct has been blemishless throughout entitling him to the specific relief - If pleadings so manifest then plaintiff should not be denied the relief - Trial court and first appellate court concurrently holding that plaintiff failed to establish that he was ready and willing to perform his part of contract and, therefore, denying the relief - High Court granting relief in second appeal without formulating any question of law and without discussing any evidence in this regard - Held, High Court's judgment not sustainable - Hence, set aside."
33. Hence, it is evident that conduct of the plaintiff should be blemishless throughout entitling him for the specific relief. But in the instant case, conduct of the plaintiff discloses that he interpolated the document 34 by inserting the signature of P.W.2 subsequently without the consent of the defendant and tried to incorporate a new clause through oral evidence of P.W.2, which disclose that, his conduct is not blemishless and he has not approached the court with clean hands. As such, he is not entitled for the discretionary relief of specific performance.
34. Learned senior counsel for the respondent has also placed reliance on the decisions of the Hon'ble Apex Court in the case of Vimlesh Kumari Kulshrestha Vs Sambhajirao and Another reported in (2008) 5 SCC 58; in the case of Dhanpat Vs Sheo Ram (Deceased) Through Legal Representatives and Others reported in (2020) 16 SCC 209; in the case of State Through Inspector of Police, A.P. Vs. K.Narasimhachary reported in 2005 SCW 4565 and in the case of Ram Suresh Singh Vs Prabhat Singh Alias Chhotu Singh and Another reported (2009) 6 SCC 681.
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35. He has also placed reliance on the decision of this court in the case of Smt.Padmini Raghavan Vs. Mr.H.A.Sonnappa, since dead by his Lrs. and Others reported in ILR 2014 KAR 233, wherein the Division Bench of this court had an occasion to deal with alterations in the document and readiness and willingness. It is observed that, once the evidence on record shows that a material alteration is made in a deed, after its execution, without the consent of the party liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorized the alteration from putting the deed in suit to enforce against a party bound by it. In the instant case, admittedly, there is material alteration in the agreement as the plaintiff obtained the signature of P.W.2 subsequently, as admitted in the evidence and it is also fairly conceded by the learned senior counsel appearing for the appellant. Under such circumstances, when the plaintiff has interpolated the agreement of sale and when his conduct establish that he was not ever 36 ready and willing to perform his part of contract, question of exercising discretion in favour of the plaintiff does not arise at all. Further, when there is a clause in the agreement itself for payment of balance consideration within two months and plaintiff without payment of the balance consideration issued legal notice after one year which disclose that he was not ready and willing to perform his part of contract. Under such circumstances, question of exercising discretion in favour of the plaintiff by granting discretionary relief of specific performance does not arise at all. Though execution of the agreement is admitted, the conduct of the plaintiff disentitles him from enforcing this specific performance.
36. The trial court has considered all these aspects in detail and analyzed oral and documentary evidence with respect to time being essence of contract as well as interpolation in the agreement and thereby rightly refused to grant specific performance. Though there was interpolation in the agreement, the trial court 37 ordered for refund of earnest money with interest at the rate of 10% p.a. and this finding is not challenged by the respondent/defendant. Under these circumstances, looking to the facts and circumstances and in view of the discussions made above, we are constrained to answer point Nos.1 and 3 in the affirmative while point Nos.2 and 4 are answered in the negative. As such, the appeal being devoid of any merits needs to be dismissed. Accordingly, we proceed to pass the following:
ORDER The appeal is dismissed by confirming the judgment and decree dated 01.08.2015 passed in O.S.No.100/2010 on the file of the I Additional Senior Civil Judge, Belagavi.
Parties to bear their own costs in this appeal.
Sd/-
JUDGE Sd/-
JUDGE MBS/-