Smt.Madhu Verma vs Smt.Urmila Devi & Anr on 4 August, 2010

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Patna High Court

Smt.Madhu Verma vs Smt.Urmila Devi & Anr on 4 August, 2010

Equivalent citations: AIR 2011 PATNA 46

Bench: Mungeshwar Sahoo

FIRST APPEAL No.581 of 1999
Against the Judgment and Decree dated 30.08.1999 passed by Sri
Manoranjan Prasad Srivastava, Sub Judge- IV, Patna in Title Suit
No.296 of 1996 / 20 of 1998.
------

SMT. MADHU VERMA
------------------Plaintiff-Appellant

Versus

SMT. URMILA DEVI & ANR.

--------------Defendants-respondents

For the Appellant : Mr. Shivnandan Prasad Singh, Advocate
Mr. Ashoka Kumar, Advocate
Mr. Manoj Kumar, Advocate
For the Respondent No.1 : None
For the Respondent No.2 : Mr. Ashok Kumar Jha, Advocate
Mr. Ranjan Kumar Jha, Advocate

Dated : 4th day of August, 2010

PRESENT

HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
-------------
JUDGMENT

Mungeshwar The plaintiff-appellant has filed this First Appeal against the
Sahoo, J.
Judgment and Decree dated 30.08.1999 passed by the learned Sub

Judge-IV Patna in Title Suit No.296 of 1996 / 20 of 1998 whereby the

learned Court below refused to grant the decree for specific performance of

contract and granted the alternative relief holding that the plaintiff is

entitled for the alternative relief.

(2) According to the plaintiff case, the plaintiff and the defendant

No.1 entered into an agreement to sell dated 30.03.1996 for consideration

of Rs.7.5 lakhs on the agreed terms incorporated in the agreement of sale.

The defendant also received a sum of Rs.51,000/- as earnest money which
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was to be adjusted in the total consideration amount. The further case is

that the defendant had agreed to produce original gift deed dated

10.06.1982 by which the defendant had acquired title but inspite of

repeated request by the plaintiff, the defendant did not produce the

original gift deed and so the sale deed could not be executed due to failure

of the defendant. Although, the plaintiff has always been repeatedly

approaching the defendant. The further case is that the plaintiff has

further paid rupees one lakh on 20.04.1996, Rs.95,000 on 11.05.1996 and

Rs.5000/- on 12.05.1996, the total being 2,51,000/- including the earnest

money. 30.06.1996 was the date fixed for execution and registration of

the sale deed.

(3) The further case is that because of non-production of the

original gift deed doubt was created so the plaintiff served the legal notice

on 04.05.1996 requesting the defendant to comply the mutually agreed

terms and to execute the sale deed but the defendant replied on

24.06.1996 with wrong and misleading statement. The plaintiff was

always and is still ready to pay the balance consideration amount and get

the sale deed executed. The defendant No.2 was knowing about the

agreement dated 30.03.1996 but the defendant No.1 executed and

registered a sale deed in favour of defendant No.2. The plaintiff making

the above averments prayed for specific performance of contract and in

the alternative prayed for a decree for recovery of Rs.2,51,000/- along

with compensation.

(4) The defendant No.1 filed contesting written statement. She

admitted to have received the amount as alleged by the plaintiff, i.e.,

Rs.2,51,000/-. According to the defendant No.1, the plaintiff was shown
3

the photocopy of gift deed before execution of agreement and on being

satisfied about the title of the defendant No.1, she entered into the

agreement dated 30.03.1996. There was no terms and conditions in the

agreement that the defendant No.1 should hand over the gift deed in

original to the plaintiff but the plaintiff always insisted for handing over the

original gift deed. In fact it was agreed upon between the parties that the

gift deed will be handed over at the time of execution and registration of

the sale deed. The defendant also sent the draft of the proposed sale deed

in April, 1996 and a legal notice was sent on 24.06.1996 requesting the

plaintiff to pay balance consideration before 30.06.1996 and get the sale

deed executed within stipulated time failing which the amount of earnest

money shall be forfeited but the plaintiff neither paid the balance

consideration nor got the sale deed executed. The plaintiff was never

ready and willing to pay the balance consideration amount and get the sale

deed executed and registered.

(5) The defendant No.2 also appeared and filed contesting written

statement alleging that she had no knowledge about the agreement

between the parties. She is a bona fide purchaser without the knowledge

of previous agreement. It is also alleged that after purchase her name has

been mutated. The defendant No.2 is also paying rent to the State of

Bihar against the grant of rent receipt.

(6) On the basis of these pleadings of the parties, the learned

Court below framed as many as 9 issues. Out of said issues, the main

issue is Issue No.6, i.e., Is the plaintiff entitled to get a decree for specific

performance of the contract as claimed in the plaint. While deciding this

issue. The learned Court below after considering the oral and
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documentary evidences, came to the conclusion that the defendant No.1

was ready to execute the sale deed before time fixed, i.e., 30.06.1996

after receiving entire balance consideration money even though the

plaintiff did not adhere to the time schedule given in the deed of

agreement for sale for part payment and accordingly in the opinion of the

learned Sub Judge, the plaintiff is not entitled to get a decree for specific

performance of the contract for sale as claimed by her. So far defendant

No.2 is concerned, the learned Court below found hat since the plaintiff is

not entitled for the relief for specific performance of the contract for sale

against defendant No.1, defendant No.2 acquired absolute right title and

interest over the suit land. On these findings, the learned Court below

refused to grant the main relief. Since the defendant No.1 had admitted to

have received Rs.2,51,000/-, the learned court below granted the

alternative relief.

(7) The learned counsel for the plaintiff-appellant submitted that

the finding of the learned Court below is wrong and based on no evidence.

The learned counsel further submitted that the plaintiff was always ready

and willing to perform his part of the contracts. The plaintiff was only

demanding the original gift deed to verify the title of the plaintiff because

being the purchaser, it was his duty to verify the same before investing

such a huge amounts. The learned counsel further submitted that the

plaintiff was always keeping with her the balance consideration amount

and was always ready and is still ready to perform her part of the contract,

i.e., to pay the balance consideration and get the sale deed executed and

registered but the defendant is avoiding. On the basis of all these

grounds, the learned counsel submitted that the plaintiff-appellant is
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entitled for the grant of specific performance of the contract dated

30.03.1996.

(8) In spite of service of notice, the defendant No.1 did not appear.

The learned counsel for the defendant-respondent No.2 submitted that she

is bona fide purchasers without knowledge of the agreement.

(9) In view of the above contentions of the parties, the points

arises for consideration in this Appeal is as to whether the plaintiff was

always ready and is still ready and willing to perform her part of the

contract and whether she is entitled for the main relief of specific

performance of the contract dated 30.06.1996, Exhibit-'6'.

FINDINGS

(10) In this case from perusal of paragraph 13 (a) of the plaint, it

appears that the defendant No.2 is purchaser from the defendant No.1

during the pendency of the suit. This fact is not disputed. Therefore, she

is a purchaser pendente lite.

(11) In this case certain facts are admitted. It is admitted by the

parties that they entered into an agreement for sale on 30.03.1996.

Consideration of RS.7.5 lakhs is also admitted. The deed for execution and

registration of the sale deed was fixed for 30.06.1996. The defendant

No.1 also admitted to have received earnest money of Rs.51,000/- at the

time of execution of the agreement for sale and also admitted that

subsequently she received Rs. 2 lakhs from the plaintiff. The case of the

plaintiff is that there was agreement between the parties that before

execution and registration of the sale deed, the defendant No.1 will hand

over the original gift deed to the plaintiff and, therefore, the plaintiff

always demanded the defendant to hand over the gift deed but the
6

defendant did not hand over the gift deed. The learned counsel for the

appellant submitted that because the plaintiff was purchaser on payment

of huge amount of Rs.7.5 lakhs, it was natural conduct of the plaintiff to

have the possession of title deed. The learned counsel further submitted

that the plaintiff was always ready and willing to pay the balance

consideration amount but the defendant always avoided to hand over the

original gift deed dated 10.06.1982 and, therefore, the defendant failed to

perform her part of the contract. Now, let us examine the evidence of this

point. From perusal of the deed of agreement to sell dated 30.03.1996,

Exhibit '6', it is clear that there is no such stipulation that the plaintiff will

hand over the original deed of gift before execution and registration of the

sale deed. In the body of Exhibit '6', it is mentioned that the defendant

No.1 acquired title over the suit property through gift deed dated

10.06.1982. P.W.4, the plaintiff, Madhubala Verma, in her evidence at

paragraph 5 has clearly admitted that the photocopy of the gift deed was

given to her at the time of negotiation. At paragraph 3, she has stated

that she was demanding the original gift deed but the defendant did not

give the said gift deed. In the cross-examination at paragraph 5, she has

clearly stated that she had told that if the original gift deed is not given

then she will not purchase the lands. From perusal of Exhibit 'A/1', which

is legal notice dated 24.06.1996 sent on behalf of the defendant No.1 to

the plaintiff, it appears that the defendant No.1 narrating the

circumstances requested the plaintiff to pay the balance consideration of

Rs.5 lakhs before 30.06.1996 and get the proposed sale deed executed. It

may be mentioned here that the last date for execution and registration

was 30.06.1996. The plaintiff admits to have received this legal notice
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dated 24.06.1996 prior to 30.06.1996 and gave reply through Exhibit '1/a'.

This reply of legal notice is dated 29.06.1996 sent on behalf of the plaintiff

through her Advocate to the defendant No.1, Smt. Urmila Devi. At

paragraph 3, it is mentioned as follows :

"That you agreed to hand over the original gift deed to
my clientess in respect of the property agreed to be sold to
my clientees before execution of the sale deed but up till
now the original gift deed dated 10.09.1982 has not been
shown to my clienteess by you. My clientess has learnet tht
you have borrowed money and has given up the original gift
deed in security to Sri Ramesh Singh of Magistrte Colony,
Asiana Nagar, Patna. My clientess has always been
requesting you to bring the original gift deed but you have
failed till now to bring the original gift deed and to show the
same to my clientess."

(12) In view of the above evidences and stipulation in the legal

notice, it appears that till at least 30.06.1996, the plaintiff was not ready

to perform her part of the contract and she was emphasizing for handing

over the original gift deed. According to her as stated in the evidence

unless the original gift deed is handed over to her, she had told the

defendant that she will not purchase the property under contract. The

learned counsel for the appellant submitted that time was not the essence

of the contract because it is sale regarding the immovable property. In

support of his contention, the learned counsel relied upon A.I.R. 1977

(S.C.) 1005 (Govind Prasad Chaturvedi Vs. Haridutt Shashtri) and A.I.R.

1988 (S.C.) 1074 (Smt. Indira Kaur Vs. Sri Shivlal Kapur).

(13) In Govind Prasad Chaturvedi Vs. Haridutt Shastri (Supra), the

Hon'ble Supreme Court has held at page 1007-1008 as follows :

"It is settled law that the fixation of the period within
which the contract has to be performed does not make the
stipulation as to time the essence of the contract. When a
contract relates to sell of immovable property, it will
normally be presumed that the time is not the essence of the
contract. (Vide Gomalthinayagam Pillai v. Pallaniswami
Nadar, (1967) 1 SCR 227, 233) : (AIR 1967 SC 868 at p.
8

871). It may also be mentioned that the language used in
the agreement is not such as to indicate in unmistakable
terms that the time is of the essence of the contract. The
intention to treat time as the essence of the contract may be
evidences by circumstances which are sufficiently strong to
displace the normal presumption that in a contract of sale of
land stipulation as to time is not the essence of the
contract."

(14) In the case of Indira Kaur Vs. Sri Shivlal Kapur at paragraph

6, the Hon'ble Supreme Court has held as under :

"The law is well settled that in transaction of sale of
immovable properties, time is not the essence of the
contract."

(15) In view of the said decisions of the Hon'ble Supreme Court, no

doubt, in the transaction of sale of immovable properties, time is not the

essence of the contract but on that ground alone the plaintiff is not entitled

for a decree for specific performance of contract unless the plaintiff proves

the continuous readiness and willingness to perform her part of the

contract.

(16) In the case of Babu Bindeshwari Prasad Vs. Mahant Jayram

Gir reported in Vol.14 Indian Appeals, it has been held that a guarantee of

title by defendant had never been within contemplation of the parties.

Consequently, no case was made for exercising the discretionary power of

the Court to grant specific relief under Act (1) of 1877. It appears that in

that case, the agreement was entered into between the parties on

03.10.1982 for a consideration of Rs.10,075/-. Rs.200/- was received as

earnest money. Rs.9,875/- was to be paid within 15 days. It was also

stipulated that if it is not paid within 15 days, the earnest money will be

forfeited. It further appears that a draft sale deed was sent by the plaintiff

requiring the defendant to give as an absolute warrantee of title and the

plaintiff insisted upon the same. The trial Court dismissed the suit holding
9

that the plaintiff had not paid the purchase money at the time fixed and no

valid excuse had been shown for his not doing so. On Appeal before the

High Court also, the plaintiff insisted for execution of conveyance with a

warrantee of good title. The Hon'ble High Court dismissed the appeal and

then against the Judgment of the Hon'ble High Court, the plaintiffs

preferred the appeal before Judicial Committee and their Lordship advised

her Majesty to dismiss the Appeal. In the present case also although on

being satisfied after seeing the photo copy of the gift deed, the plaintiff

entered into the agreement for sale but subsequently a condition was put

by her that unless the original gift deed is given, she will not pay the

balance consideration amount and, therefore, she insisted guarantee of

title.

(17) In A.I.R. 1993 (S.C.) 1742, the Hon'ble Supreme Court at

paragraph 16 has held as follows :

"From the materials available in this case, it is clear
that the plaintiff was never ready and willing. No doubt, on
10.09.1971

, a notice was issued to the defendant that the first plaintiff had ready money with her for the purchase of property. It was also followed by a telegram. However, that was replied to calling upon the plaintiff to pay a sum of Rs.98,000/- which should have been paid on or before 26.08.1971. This stand was reiterated by reply notice dated 16.09.73. Strangely, the plaintiff would insist upon the vacant possession of the first floor by 30th of September, 1971. Only on such delivery of possession and payment of taxes, the plaintiff was prepared to part with the consideration of Rs.98,000/-. Therefore, it would be clear from the notice of the plaintiff dated 24.09.1971 excepting mere assertion of readiness and willingness, it was not followed by conduct. The idea of the plaintiff seems to be to obtain delivery of possession. As has been rightly held by the Division Bench that where a counter term stipulated which was not supported by the suit contract, certainly the suit contract will stand vitiated. Thus it is submitted that no case is made out for interference."

(18) In view of the aforesaid law laid down by the Hon'ble 10 Supreme Court, mere assertion of readiness and willingness in the plaint or in the evidence or in the legal notice is not sufficient to prove readiness and willingness. The said assertion must be followed by conduct of the plaintiff. In the present case although by the notice dated 24.06.1996, the defendant No.1 called upon the plaintiff to deposit the money and get the sale deed executed before 30.06.1996 but instead of paying the consideration money for obtaining sale deed, the plaintiff replied on 29.06.1996 demanding the original gift deed. In the evidences as discussed above, she specifically stated that unless gift deed in original is given to her, she will not purchase the property. All these evidences shows the conduct of the plaintiff that the plaintiff was putting a counter term which was not mentioned in the contract, Exhibit '6', and was insisting for handing over the gift deed. Therefore, during this period, the plaintiff was not ready and willing to perform her part of the contract by paying the balance consideration amount to the defendant. On the contrary, the defendant as stated above by Exhibit 'A/1' requested the plaintiff to pay the balance consideration and get the sale deed executed and registered.

(19) In view of the above discussion of the documentary evidences coupled with evidences of plaintiff herself and the law laid down by the Hon'ble Supreme Court, the other oral evidences are not necessary to be gone into in detail. In view of my above discussion, I find that although time was not the essence of the contract for sale of immovable property, the plaintiff was not always ready and willing to perform her part of the contract, i.e., she was not ready and willing to pay the balance considerati0n amount till the original gift deed is handed over to her. In 11 my opinion, therefore, no case is made for exercising the discretionary power of the Court to grant specific relief in favour of the plaintiff. The finding of the learned Court below on these points are, therefore, confirmed.

(20) So far sale by the defendant No.1 in favour of defendant No.2 is concerned, the legality or otherwise of the same is not required to be gone into because it has been found above that the plaintiff is not entitled for a decree for specific performance of contract of sale, Exhibit '6'. The finding of the learned Court below on these point is also, therefore, confirmed.

(21) In the result, I find no merit in this First Appeal and accordingly this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.

(Mungeshwar Sahoo, J.) Patna High Court, Patna Dated 4 th,August, 2010 AFR/ Sanjeev

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