Karnataka High Court
N G Vijaya Kumar vs Smt Y N Leelavathi on 5 May, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 05th DAY OF MAY, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1627 OF 2014
Between:
N.G. Vijaya Kumar
S/o late N. Gangappa
Aged about 58 years
R/o No.43, Jaya Vilas
Venkatappa Street
Chikkamavalli
Bangalore - 560 004
...Appellant
(by Shri Shanmukhappa, Advocate)
And:
1. Smt. Y.N. Leelavathi
Aged about 49 years
W/o late L.R. Sri Rangappa
2. Smt. L.S. Hemalatha
aged about 36 years
D/o late L.R. Srirangappa
Both are residents of
No.3, 4th Cross, L.G. Ramanna Layout
Laggere, Peenya Post
2
Bangalore - 560058
...Respondents
(by Shri G.L. Vishwanath, Advocate)
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure against the judgment and decree dated
13.08.2014 passed in OS No.4422 of 2006 on the file of the V
Additional City Civil Judge, Bengaluru, dismissing the suit for the
specific performance and possession.
In this Appeal arguments being heard, judgment reserved,
coming on for pronouncement of judgment this day, INDIRESH
J, delivered the following:
JUDGMENT
This Regular First Appeal is preferred by the plaintiff challenging the judgment and decree dated 13th August, 2014 passed in Original Suit No.4422 of 2006 on the file of the V Additional City Civil Judge at Bangalore, whereby trial court has dismissed the suit for specific performance with costs.
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial Court.
3. The plaintiff has filed the suit against the defendants for specific performance of the contract and possession, directing the defendants to execute and register the sale deed in respect of the suit schedule property in his favour by receiving the 3 balance sale consideration from the plaintiff in terms of the agreement of sale dated 24th February, 2004 and also sought for a direction that in the event defendants failing to execute and register the sale deed in favour of the plaintiff, same may be got executed and registered in his favour. Plaintiff also sought for a direction against the defendants to deliver vacant possession of the suit schedule property, inter alia, sought for grant of permanent injunction restraining the defendants from alienating, encumbering or disposing off the suit schedule property in any manner whatsoever in favour of anyone other than the plaintiff.
4. Brief facts of the case according to the plaintiff are:
that defendant No.1 is the wife of late L.R. Srirangappa and defendant No.2 is their daughter; defendants are the owners of immoveable property bearing survey No.115/1 measuring three acres of land situated in Laggere, Yeshwanthpur Hobli, Bangalore North Taluk (hereinafter referred to as 'the suit schedule property'), having acquired the same, under a family partition;
defendants have executed a written agreement of sale dated 24th February, 2004 agreeing to sell the suit schedule property in 4 favour of the plaintiff for a total sale consideration of Rs.50,00,000/-. Pursuant to the execution of the agreement of sale, plaintiff has paid sum of Rs.15,00,000/- to the defendants as advance and part of sale consideration; plaintiff further averred that he paid Rs.10,00,000/- by way of cash in the presence of witnesses to the defendants and the remaining Rs.5,00,000/- through Cheque bearing No.189533 dated 24th February, 2004 drawn on Central Bank of India, Brigade Road Branch, Bangalore and the said amount of Rs.5,00,000/- has been realised by the defendants; receipt of the said advance amount of Rs.15,00,000/- has been acknowledged by the defendants in the agreement of sale dated 24th February, 2004;
it is further averred that agreement of sale dated 24th February, 2004 stipulates that the sale transaction was to be completed within a period of two years from the date of the agreement within said period defendants have to obtain necessary permission from the competent authorities and thereafter execute and register the sale deed in favour of the plaintiff by receiving the balance sale consideration of Rs.35,00,000/- at the time of execution of registration of sale deed; plaintiff was 5 always ready and willing to perform his part of contract by paying the balance sale consideration and to get the sale deed executed and registered in his name from the defendants, however, defendants are avoiding and evading to perform their part of the contract. In view of the same, plaintiff got issued legal notice dated 23rd February, 2006 to the defendants, and despite having received the legal notice, defendants have neither made efforts to execute the registration of Sale Deed nor reply to the same. It is further averred that defendants who are liable to execute and register the sale deed in respect of the suit schedule property, are making hasty attempts to alienate the same in favour of others. Hence, plaintiff filed OS No.4422 of 2006 seeking specific performance of the agreement of sale dated 24th February, 2004 and for consequential reliefs as stated in the plaint.
5. In response to the suit summons, defendants appeared through their advocate and filed their written statement contending that the averments made in the plaint are false and frivolous and sought for dismissal of the suit. It was contended 6 that plaintiff is a stranger and there is no privity of contract between them; the defendants have denied the execution of agreement of sale dated 24th February, 2004; it was further stated in the written statement that acceptance of Rs.5,00,000/- from the plaintiff was towards meeting the marriage expenses of second defendant which had been fixed on 28th February, 2004 and it was contended that husband of the first defendant had died on 25th March, 1993 and in view of the same, one Sri L.R. Nagarajappa, being the elder brother of the husband of the first defendant was to perform the marriage of the second defendant and as such the said Sri L.R. Nagarajappa had requested the first defendant to avail loan from the third parties for the purpose of meeting marriage expenses. Under these circumstances, the said L.R. Nagarajappa prevailed upon the defendants to sign certain documents, which were typed on the stamp paper for which defendants have objected to affix their signature on the documents; however, said Sri L.R. Nagarajappa had informed the defendants that he had arranged for some funds to meet the marriage expenses and in that connection, a cheque for Rs.5,00,000/- was handed over to the first defendant 7 and stated that these loan documents were required to be signed by them for the amount paid and as such, the defendants had no idea as to the nature of the documents or in whose name it was executed; and believing the version of the said Sri L.R. Nagarajappa, defendants had affixed their signature to the agreement of sale dated 24th February, 2004 without knowing that they were entering into an agreement of sale of suit schedule property. The defendants further stated that on 23rd February, 2006 the said Sri L.R. Nagarajappa had brought a document styled as Release Deed to be executed by the first defendant and others in favour of Sri L.R. Munigangappa being another brother-in-law of the first defendant; under the said Release Deed totally five releasers stated therein, including the first defendant, were to release their one sixth undivided share each in the suit schedule property; the defendants further contend that with a view to build confidence so as to persuade the first defendant to sign the release deed, the said Sri L.R. Nagarajappa has represented to the first defendant that he was also arrayed as one of the releasers in the said release deed. Further, the first defendant has requested Sri L.R. Nagarajappa 8 to handover the copies of the documents to which their signatures were obtained on 24th February, 2004, for which the said Sri L.R. Nagarajappa did not oblige. In this connection, on 01st March, 2006, the other releasers appear to have released their 4/6th share of the undivided share in the suit schedule property in favour of L.R. Munigangappa. The defendants further stated that the market value of the suit schedule property is more than Rs.3.00 crore, suffice to say, that even during the year 2004, the value of the suit schedule property was more than Rs.2.00 crore and in view of the same, entering into an agreement of sale dated 24th February, 2004 in favour of the plaintiff does not arise at all since the consideration amount agreed upon by the parties in the agreement of sale dated 24th February, 2004 was only Rs.50,00,000/-. Hence the defendants sought for dismissal of the suit.
6. On the basis of the aforesaid pleadings, trial court had framed the following issues:
(1) Does the plaintiff prove that the defendants executed an agreement of sale on 24.2.2004 9 in his favour, agreeing to sell the suit schedule property to him for a sale consideration of Rs.50,00,000/-?
(2) Does the plaintiff prove that he paid an amount of Rs.15,00,000/- to defendants by advance?
(3) Does the plaintiff prove that throughout, he has been ready and willing to perform his part of the contract?
(4) Do defendants prove that they received Rs.5,00,000/- from the plaintiff, yielding to the threat and pressure put by Sri L.R.Nagarajappa and signed on several papers as contended in para 12 of the written statement?
(5) Do defendants prove that in the circumstances narrated in para 14 and 15 of their written statement, they would not have executed an agreement?
(6) Is the plaintiff entitled for a decree of suit property and possession of suit property? If so, what order or decree?10
7. In order to substantiate his case, plaintiff got himself examined as PW1 and also examined two more witnesses as PWs.2 and 3 and got marked documents as Exhibits P1 to P9. Defendant No.2 was examined as DW1 and defendant No.1 was examined as DW2 and defendants have marked Exhibits D1 to D6.
8. On the basis of the pleadings and on evaluating the evidence recorded, the trial court has answered issues No.1 and 2 in the affirmative; however, has answered issues No.3 to 5 in the negative and accordingly, dismissed the suit of the plaintiff. Being aggrieved by the judgment and decree dated 13th August, 2014 passed by the trial court, plaintiff has preferred this appeal.
9. We have heard the learned counsel appearing for the parties and perused the materials on record as well as the original records secured. Shri Shanmukhappa, the learned counsel appearing for the plaintiff contends that judgment and decree dated 13th August, 2014 passed by the trial Court is illegal, arbitrary and contrary to the material placed on record. He further contends that though trial Court having arrived at a 11 conclusion that plaintiff had proved the execution of agreement of sale dated 24th February, 2004, yet did not decree the suit of the plaintiff. He has further contended though plaintiff has produced sufficient documents to establish show that he had sufficient funds to purchase the suit schedule property as on the date of filing of the suit, trial court, without considering said documents available on record as well as oral evidence in right perspective, has dismissed the suit filed by the plaintiff by observing that plaintiff has failed to prove his readiness and willingness to perform his part of contract. He further contends that Court below has erred in recording a finding that land in question is a granted land and therefore, there cannot be any sale agreement in respect of the suit schedule property. It is his further contention that trial court has failed to take note of the fact that there is a specific stipulation in the agreement of sale as to obtaining permission from the competent authorities by respondents and in this regard he submits that respondents had failed to adhere to the terms and conditions stated in the agreement of sale. He further submits that trial court has committed a grave error in dismissing the suit in totality even 12 without ordering refund of the amount paid under the agreement of sale, and thereby, judgment and decree passed by the trial Court suffers from non-consideration of materials placed on record. Hence, he prays for allowing the appeal by decreeing the suit.
10. Per contra, Shri G.L. Vishwanath, learned counsel appearing for the respondents contends that judgment and decree passed by the trial Court is in accordance with law and the trial Court has considered the entire materials placed on record and on appreciating the evidence on record, has rightly dismissed the suit filed by the plaintiff and the same does not call for any interference, and as such, he has sought for dismissal of the appeal.
11. Having heard the learned counsel appearing for the parties, and on perusal of entire material on record, we are of the view that following point would arise for our consideration:
Whether finding recorded by the trial court to dismiss the suit filed by the plaintiff for specific performance requires interference or not?13
12. The undisputed facts of the case is that marriage of the 2nd defendant was fixed on 29th February, 2004. Exhibit D4 is the marriage invitation and Exhibit D3 is the marriage photograph. Originally, Sri L.G. Ramanna the father-in-law of the defendant No.1 was the owner of the property and pursuant to his death, Land Tribunal granted occupancy rights in favour of the joint family of the legal heirs of late L.G. Ramanna viz. the husband of the Defendant No.1-late L.R. Srirangappa who is the brother of L.R. Nagarajappa and others vide proceedings No.599:74-75, 2857:76-77 and 259:79-80 as per Exhibit D1. It is not in dispute that the defendants herein are the absolute owners of the suit schedule property. That as contended by the plaintiff, agreement of sale dated 24th February, 2004 stipulates that the defendants/vendors shall obtain required permission from the competent authorities for the sale of the suit schedule property in favour of the appellant/purchaser within two years from the date of execution of agreement of sale. The parties have further agreed that the time for compliance of the contract shall be two years from the execution of the agreement of sale dated 24th February, 2004. It is not in dispute that the 14 defendants acknowledged the receipt of Rs.15,00,000/-, i.e. Rs.10,00,000/- by way of cash and Rs.5,00,000/- through cheque, which they have encashed. Perusal of entire records would clearly indicate that the marriage of the defendant No.2 had been fixed on 28th February, 2004 with one N.V. Swamy at Gangamma Thimmaiah Convention Hall, Bengaluru and in this connection the finding recorded by the trial court probabalises that defendant No.1 has received the amount of Rs.5,00,000/- by way of cheque and Rs.10,00,000/- by way of cash from the plaintiff to meet the marriage expenses. This would also clearly establish the fact that respondents have put their signature at the instance of Sri L.R. Nagarajappa who is none other than the elder brother of Late Srirangappa-the husband of Defendant No.1 who had performed the marriage of 2nd defendant. Though the trial Court has answered issues No.1 and 2 in favour of the plaintiff with regard to execution of agreement of sale dated 24th February, 2004 inter alia accepting an advance of Rs.15,00,000/- by the defendants, however, has held issues No.3 to 5 in favour of the defendants. Having gone through the entire documents on record and the materials available, we are 15 of the opinion that trial court was justified in dismissing the suit by considering the factual aspects of the case; and the circumstances therein would probabalise that the respondents have signed Exhibit P1-agreement of sale dated 24th February, 2004 to avail consideration of Rs.15,00,000/- from the plaintiff for the purpose of meeting marriage expenses of defendant No.2 as a loan document and have no idea or intention that they were selling the suit schedule property as contemplated by the plaintiff under an agreement of sale .
13. Section 16 of the Specific Relief Act, 1963 (for short hereinafter referred to as 'the Act') provides for personal bar to relief. Section 16 of the Act, reads:
"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
(a) who has obtained substituted performance of contract under Section 20; 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 prove that he has performed or has always been ready and willing to perform the 16 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 prove performance of, or readiness and willingness to perform, the contract according to its true construction."
Sub-clause (ii) to the explanation found under Clause (c) of Section 16 stipulates that plaintiff has to aver performance of, or readiness and willingness to perform the contract.
14. As regards readiness and willingness is concerned, this Court, in the case of SMT. CHANDRAKANTHAMMA & OTHERS vs. B.RAMAKRISHNAIAH reported in (2016)I AIR KANT.R 273, following the judgment of the Hon'ble Supreme Court in the case of COROMANDEL INDAG PRODUCTS PRIVATE LIMITED v. GARUDA CHIT AND TRADING COMPANY PRIVATE LIMITED AND ANOTHER reported in (2011) 8 SCC 601, at paragraph 20 of the judgment has held thus:
17
"20. It is also relevant to point out the stand of the parties as reflected in their pleadings and evidence. In terms of Section 16(c) of the Specific Relief Act, 1963, it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. The Explanation appended to clause (c) makes it clear that if 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. However, the plaintiff must aver performance of or readiness and willingness to perform the contract according to its true construction."
In the same paragraph, it is further held as follows:
"Therefore, not only the plaintiff has to aver his readiness and willingness, he must prove his readiness and willingness by such acceptable evidence on record. The Explanation makes it clear, in proving his readiness and willingness, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money. But nonetheless, when he is called upon to prove in a Court of law his readiness and willingness, he must prove by acceptable evidence that on the day he was expected to pay the balance sale consideration agreed upon, either he had ready funds or from where he would have raised the funds as on that day. Raising of 18 the funds or source of funds subsequent to the date of the suit would not prove the plaintiff's readiness and willingness to perform his part of the contract in terms of the contract agreed upon. In this connection, this Court had an occasion to review the entire case law on the point and in the case of SMT. PADMINI RAGHAVAN v. MR. H.A. SONNAPPA, SINCE DEAD BY HIS L.Rs AND OTHERS reported in ILR 2014 KAR 233 held as under:
"51. Thus, Section 16(c) of Act envisages that 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. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This 19 circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. AS stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his 20 financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with."
21. Therefore, it is clear, in order to prove his readiness and willingness, the amount of consideration which the plaintiff has to pay to the defendants, must of necessity be proved to be available right from the date of the execution of the agreement till the date of the decree. He must prove that, he is ready and has always been willing to perform his part of the contract. The factum of his readiness and willingness to perform his part of the contract has to be adjudged with reference to the conduct of the parties and the attendant circumstances." 21
15. Therefore, it is clear that readiness and willingness cannot be considered in a straitjacket formula, and it has to be determined on the facts and circumstances of each case; the intention and conduct of the parties concerned and all other attendant considerations. Readiness and willingness are different and distinct and even if a party to the contract is ready and has the requisite funds, he must be willing to perform his part of contract and vice-versa. Thus, both readiness as well as willingness have to be established by plaintiff on whom the burden is cast in a suit for specific performance of the agreement.
16. After the amendment of Section 16(c) of Specific Relief Act, 1963 the Hon'ble Supreme Court, in the case of MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS. Vs. AHSANUL GHANI (Civil Appeal No.8199/2009 disposed of on 15th February 2019) has held that averments made in the plaint must disclose that all the requirements of Section 16(c) read with requirement contained in Form 47 and 48 of Appendix 'A' of Code of Civil Procedure is found. It has been further held:
22
"13. It remains trite that the relief of specific performance is not that of common law remedy but is essentially an exercise in equity. Therefore, in the Specific Relief Act, 1963, even while providing for various factors and parameters for specific performance of contract, the provisions are made regarding the contracts which are not specifically enforceable as also the persons for or against whom the contract may be specifically enforced. In this scheme of the Act, Section 16 thereof provides for personal bars to the relief of specific performance. Clause (c) of Section 16 with the explanation thereto, as applicable to the suit in question, had been as follows:-
"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-
(a) xxx xxx xxx
(b) xxx xxx xxx
(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 purpose of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the 23 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."
14. Though, with the amendment of the Specific Relief Act, 1963 by Act No. 18 of 2018, the expression "who fails to aver and prove" is substituted by Act No. 18 of 2018, the expression "who fails to aver and prove" is substituted by the expression "who fails to prove". By the same Act No. 18 of 2018, the expression " must aver" is substituted by the expression "must prove" expression "who fails to prove" and the expression "must aver" stands substituted by the expression "must prove" but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favour to the person who fails to prove that he has already 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 the terms of which, the performance has been prevented or waived by the other party. As per the law applicable at the relevant time, it was incumbent for the plaintiff to take the specific averment to that effect in the plaint. Of course, it was made clear by this Court in several decisions, that such requirement of taking the necessary averment was not a matter of form and no specific phraseology or language was 24 required to take such a plea. However, and even when mechanical reproduction of the words of statue was not insisted upon, the requirement of such pleading being available in the plaint was neither waived nor even whittled down. In the case of A. Kanthamani v. Nasreen Ahmed: (2017) 4 SCC 654, even while approving the decree for specific performance of the agreement on facts, this Court pointed out that the requirement analogous to that contained in Section 16(c) of the Specific Relief Act, 1963 was read in its forerunner i.e., the Specific Relief Act, 1877 even without specific provision to that effect. Having examined the scheme of the Act and the requirements of CPC, this Court said,- vide Syed Dastagir v.
T.R.Gopalakrishna Setty: (1999) 6 SCC 337; and Aniglase Yohannan v. Ramlatha and Ors.: (2005) 7 SCC 534, "Therefore, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16 (c) read with requirements contained in Forms 47 and 48 of Appendix 'A' CPC."
17. A plain reading of Section 16(c) of the Act makes it absolute that plaintiff has to plead readiness and willingness to pay balance sale consideration amount and has also to tender in proof off its evidence. In this background efforts made by plaintiff to pay balance sale consideration within a period of two 25 years, i.e. from the date of execution of sale agreement dated 24th February, 2004 will have to be looked into and evidence will have to be evaluated. Perusal of the entire records would indicate that plaintiff has not made any efforts with regard to execution of sale deed in pursuance of the agreement of sale dated 24th February, 2004. Plaintiff ought to have taken steps in this regard to prove his readiness and willingness.
18. It is the specific case of the plaintiff that suit schedule property is the absolute property of the defendants and they had agreed to sell the same under Exhibit P1 whereunder time for execution of the sale has been stipulated as two years from the date of agreement. Since Clause 6 and 7 of the agreement has bearing on the point of readiness and willingness, same is extracted hereinbelow:
"6. The Parties hereto agree that the VENDORS shall obtain the required permission from the competent authorities for the sale of the Schedule Property in favour of the PURCHASER within two years from the date of these articles.26
7. It is hereby agreed between the parties hereto that the time for compliance of the contract shall be two years from the date of this document and the time shall form the essence of the contract."
19. Plaintiff has contended in the plaint that he has been always ready and willing to perform his part of the contract. According to plaintiff, defendants had to obtain permission from competent authority to sell suit schedule property. Neither in the plaint or in the legal notice (Exhibit P2), plaintiff has specified as to what permission defendants had to obtain. For the first time in his deposition, he contended there was a prohibition clause for sale of suit schedule property, within fifteen years from the date of grant. It is also deposed that under the said circumstances, two years time had been fixed for the purposes of completion of the sale transaction.
20. Undisputedly, plaintiff is a practicing advocate and as such he was conversant with the nuances of difference between grant and conferring title by way of grant of occupancy rights. In fact, in his cross-examination dated 12th September, 2012, the order passed by the Land Tribunal dated 31st January 1999 27 was produced and marked as Exhibit D1. Plaintiff also knew that the revenue records of the suit schedule property stood in the name of Sri L.R. Nagarajappa for the year 2005-06 i.e. as on the date of agreement, yet he did not call upon the defendants to get the revenue records mutated. In his cross-examination, dated 12th September, 2012, he admits that he has not asked the defendant whether any permission to sell the land has been applied or obtained. He also admits that there is no written correspondence with the defendants in this regard. He claims to have made demand orally. However, the two independent witnesses PW2 and PW3 have not whispered a word in this regard. Thus, the self-serving testimony of the plaintiff would not come to his rescue to buttress his plea of being ready and willing to perform his part of contract. Though in the normal circumstances, the principle of oath against oath could have been applied, in the light of defendants having stoutly denying the plaintiff's statement. However, we desist from doing so, for the simple reason that plaintiff being a practicing advocate and well conversant with the legal consequences, could have kept quiet for two long years without raising his little finger. This 28 conduct on the part of the plaintiff would drive us to arrive at a conclusion that the plaintiff was not serious in enforcing the agreement or in other words, not ready and willing to perform his part of the contract. Thus, we are of the considered view that the trial court was justified in arriving at a conclusion that the plaintiff was not ready and willing to perform his part of the contract, by answering issue No.3 in the negative.
21. We have perused the judgment of the trial court. The trial court has dismissed the Suit in totality without ordering refund of the amount paid under agreement of sale dated 24th February 2004. The relief of specific performance is a discretionary one. Merely because it is lawful, in all cases such relief need not be granted automatically. A perusal of pleadings of the parties, evidence on record, and findings recorded by the trial Court would clearly establish the fact that though trial court, while answering issues No.1 and 2, has arrived at a conclusion that parties have entered into an agreement of sale on 24th February, 2004, however, the relief of specific performance was not ordered under the circumstances of the case. In this regard, 29 it is necessary for us to notice the judgment of the Hon'ble Supreme Court in the case of KAMAL KUMAR v. PREMLATA JOSHI AND OTHERS reported in (2019)3 SCC 704, while dealing with the pre-requisites to be examined by the Courts in the case of specific performance of contract, has held that grant of relief of specific performance is a discretionary and equitable relief. It has been observed thus:
"10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause 30 any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds."
22. In the light of authoritative principle laid down by the Apex Curt above referred to, when facts and circumstances of the present case is examined, it is noticed that the plaintiff was held not entitled for the relief of specific performance by the trial court. However, the fact remains plaintiff had paid advance money to the defendant-vendors, though specifically alternative relief of refund of amount had not been prayed for in the plaint. Section 22(1)(b) of the Act mandates that plaintiff has to seek alternative relief of refund of deposit 'in case his claim for specific performance is refused' and according to sub-section (2) of Section 22 of the Act, relief of refund would not be granted unless it is or it was specifically claimed. It would appear that plaintiff does not place the two reliefs at par, rather he gives his order of preference. The said aspect of the matter was considered by the Division Bench of Andhra Pradesh High Court 31 in the case of MANAGER PUSHPAGIRI MUTT v. C. INIDRAMMA reported in AIR 2003 AP 379 wherein it is held that since the relief of specific performance is a discretionary relief, though specifically the alternative relief of refund of the amount had not been prayed for, in the circumstances of the case and in the interest of justice, the Court could deem fit and necessary to grant just and equitable decree for refund of advance money with interest.
23. In the case of MST. SAHIDA BIBI v. S.K. GOLAM MUHAMMAD reported in AIR 1983 CALCUTTA 216, the Division Bench of Calcutta High Court has held that relief of specific performance was not granted because of facts showing that the plaintiff did not aver and prove that he was ready and willing to perform his part of contract to sale. However, it was found that earnest money paid should be refunded. Neither the plaintiff had appealed before the trial Court for grant of said prayer nor was there any such prayer made before the appellate Court. Thus bar under Sub-section (2) of Section 22 of the Act would clearly apply. But on consideration of proviso thereto, the 32 Division Bench gave an opportunity to the plaintiff therein to amend the plaint and further observed that where such other relief was not claimed in the plaint originally filed, the plaintiff has right to amend the relief at any stage of the proceedings. The words "at any stage of the proceedings" connotes not only before the Court of first instance i.e. in the original jurisdictional court, but also before the Appellate Court, as it would serve the purpose of the proviso to the main provision as contemplated under Section 22 of the Act.
24. The Hon'ble Supreme Court while interpreting the words "at any stage of the proceedings" in the case of BABU LAL v. HAZARI LAL KISHORI LAL AND OTHERS reported in AIR 1982 SC 818 has held that the expression "at any stage of the proceedings" would include execution proceedings as well as the Appellate Court.
25. Whereas it settled principle of law that proviso follows the enacting part of Section and is in a way independent of it. It does not enlarge the scope of the Section, and in most cases it cuts down or makes an exception from the ambit of the 33 main provision. The proper intention of a provision is to accept and deal with the cases which would otherwise fall within the general language of the main enactment and its effect is confined to that case. The proper way to regard a proviso is as a limitation upon the effect of the principal enactment. The duty of the Court also must be to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. Bindra's Interpretation of Statutes in Sixth Edition points out that "Ordinarily, a proviso is no doubt designed to restrict rather than to enlarge the provision to which it is appended but this is not an inflexible rule and there are cases in which the language might well lead to the conclusion that the Legislature intended to exercise its enacting power. If after a careful examination of the proviso, the provision to which it is attached and the Act as a whole, the court comes to the conclusion that the Legislature intended to create a liability, it is the duty of the court to give effect to the intention even though it is embodied in a proviso. Having considered the interpretation made therein with regard to proviso and on application of the same to Section 22(2) of the 34 Act, it would serve the intention of the Legislature if the purchaser is allowed to entitle for refund of the earnest advance amount provided that the finding of the trial Court is in favour of the plaintiff with regard to execution of sale of agreement is concerned.
26. As contemplated in proviso to clause (2) of Section 22 of the Act while invoking the Code of Civil Procedure, the Court has discretion to allow amendment. But in this appeal it overrides the Code of Civil Procedure. The Court has no option but to allow such amendment which is a discretion being only in respect of the terms on which the amendment is to be allowed.
27. The High Court of Madhya Pradesh in the case of SUSHILA DEVI AND OTHERS v. KACHRABAI AND OTHERS reported in 1994 MPLJ 362 has held that where in a suit of specific performance a decree is refused, the Court can order refund of amount paid in pursuance of contract to the defendant, if the plaintiff is not prayed so in the suit.
28. In the instant case though the plaintiff-appellant has not sought for refund of earnest money as an alternative prayer 35 in the plaint, however, the plaintiff-appellant has filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure and requested this Court for refund of advance amount of Rs.15,00,000/- from the defendant- respondents which is an alternate prayer. On considering the law declared by various High Courts as stated supra and by applying the principle of justness in the instant case, we are of the opinion that the appellant-plaintiff is entitled for refund of amount of Rs.15,00,000/- from the defendant-respondents with interest at the rate of 6% per annum from the date of entering into agreement of sale till the date of realisation of the same by allowing the application.
In view of the same, we pass the following:
ORDER Appeal filed by the appellant-plaintiff is allowed in part. Judgment and decree dated 13th August, 2014 passed in OS No.4422 of 2006 by the V Additional City Civil Judge dismissing the suit for specific performance is affirmed and prayer for 36 refund of advance amount of Rs.15,00,000/- with interest at 6% per annum from 24th February, 2004 till deposit or payment of said amount is decreed.
Respondent-defendants are directed to pay or refund a sum of Rs.15,00,000/- with interest at 6 percent per annum from the date of entering into agreement of sale till the date of payment or deposit to the appellant-plaintiff within a period of three months from the date of receipt of copy of this Judgment.
Sd/-
JUDGE Sd/-
JUDGE lnn