Allahabad High Court
Nathu Singh S/O Hariya vs Jagdish Singh S/O Jhumman on 5 April, 1991
Equivalent citations: AIR1992ALL174
JUDGMENT
1. This Second Appeal is by a plaintiff who was unsuccessful in both the courts below. Only two main questions are raised in the appeal. Firstly whether on the findings recorded, the plaintiff had failed to prove his readiness and willingness to perform his part of contract and secondly what value should be attached to the undelivered notices sent by the plaintiff prior to the suit ? One more question has emerged due to the change of circumstances during the pendency of the appeal. It is as to the effect of the acquisition of the land in question on the relief sought.
2. It is undisputed that the plaintiff was the original owner of the land and on 3-7-1973 he had transferred the same to the defendant. Simultaneously the defendant admittedly had entered into an agreement for re-transferring the property to the plaintiff for a sum of Rs. 15,000/- within two years. Prior to the suit the plaintiff sent notices by registered post on 22-3-74and 6-5-1975 but both of them were returned undelivered with an endorsement of refusal. In the plaint it is averred that the plaintiff was always ready and willing to perform his part of the contract and despite being approached by the plaintiff on several occasions with requisite money the defendant avoided to execute the sale deed on one pretext or the other.
3. The suit was contested mainly on the ground that the plaintiff had no capacity to pay sale consideration and that the plaintiff had never approached him for executing the sale deed. On the contrary, the defendant pleaded that the plaintiff himself had expressed his inability to arrange the requisite amount when the defendant had asked him to get the sale deed executed. The defendant also pleaded that he had spent considerable amount over improvement of the land, by boring a well and installing an engine over it after the plaintiff had refused. He denied having ever received any notice and contended that time being the essence of contract the suit was not maintainable.
4. The lower appellate court formulated two points: (i) Whether the time was the essence of the contract as pleaded by the defendant, and (ii) whether the plaintiff had been and was always ready and willing to perform his part of the contract? On both these points the answer is against the plaintiff.
5. While recording its finding on the first point the court took note of the difference which exists between an agreement of sale simpliciter and the one for reconveyance. In the former time is not of essence of the contract while in the latter it is because, in that case the party agreeing to reconvey the property holds a precarious title and it would be inequitable to keep him in that situation longer than stipulated by the parties to the agreement.
6. In appeal the appellant's learned counsel has very rightly not assailed this legal position. What he has tried to say is that plaintiff had asserted this right within time and even lodged the plaint within two years i.e. on 2-6-1975.
7. May he that in a suit seeking specific performance of a conrtract of re-coveyance as distinguished from an agreement of sale, time is of essence of the contract yet each case ought to be decided on facts of its own.
8. The two notices sent by the plaintiff before the suit have both been duly proved. The notices were despatched under a pre-paid registered cover properly addressed but both of them have been received back with the endorsement of 'refusal'. The Court have found that these notices had not been delivered to the defendant and therefore they are of no use at all, A faint attempt was made by the appellant to urge that this finding was erroneous but when the courts have concurrently found that after denial of service by the defendant the burden of proof again shifted on the plaintiff and he having failed to discharge it; the service of notice was not proved. This is a finding of fact and in Second Appeal this court will be loath to interfere with it. Reference to some cases on this point is also not relevant because these cases deal with service of notice and presumption under S. 27 of General Clauses Act.
9. The fact that two notices had been sent by registered post and were returned undelivered is a proved fact on record. The question however, is whether the notices have no value at all for the points raised in the suit ? The notice when sent by post goes out of senders power once it is put in transmission and whatever is written or mentioned there is incapable of being altered. The closed undelivered envelopes were opened in court when plaintiffs oral evidence was tendered. In these circumstances the contents of these notices become the best index of plaintiffs intention or state of his mind which is supremely relevant to determine whether he was or was not ready and willing to perform his part of the contract notwithstanding the fact that the notice had not been delivered.
10. In the first notice the plaintiff had referred to the agreement and also stated about his readiness and willingness for reconveyance. He requested the defendant to fix a date for execution of the sale deed. When this notice was returned with an endorsement of refusal another was sent thereafter referring to the earlier notice. He again expressed his readiness and willingness to perform his part of contract and by this notice fixed 26-5-1975 for executing the sale deed. These contents clearly demonstrate plaintiffs effort to get the sale deed in his favour. He also clearly asserted that he was ready and willing to do all that was necessary. Thus merely because the notices were not actually delivered it cannot be inferred that the notices were irrelevant. These noitces were certainly relevant for the purpose of indicating the state of plaintiff's mind and his offer to have the sale deed executed within the stipulated period. This material evidence showing plaintiffs readiness and willingness has been erroneously ignored by the courts below.
11. There is an allied question to this i.e. whether the plaintiff had the requisite financial capacity to pay the sale consideration? Here again the courts have faltered while recording finding against the appellant by wrongly construing evidence on record.
12. Two things have weighed with them. First, the plaint, when filed, was not duly stamped and second, the plaintiff sold some other land belonging to him during the pendency of the suit. It is not always justifiable to draw an inference against plaintiffs capacity when the plaint in a suit for specific specific performance is filed with deficient court-fee. This approach may some times be dangerous and misplaced. There may be several reasons for not filing the plaint with full court-fee. This is not invariably for the reason that plaintiff has no arrangement for meeting his obligation under the contract. Therefore, in all such cases the courts would be advised to approach with caution and where a plausible explanation is forthcoming due weight should be given to it.
13. In the instant case the plaint was lodged in the court on the closing day before Civil Court vacation for summer, with a deficient court-fee of Rupees 1433.50 affixing only sixteen court-
fee stamps of Re. 1/- each. Order sheet of 2-6-1975 shows that the court fixed 10-7-1975 to wait for deficiency to be made good. On 10-7-1975 plaintiff applied for two months time to pay the requisite court-fee stamp as the Court-fee stamps were not available. The application was allowed and one month's time was granted to make good the deficiency. On ! 1-8-1975 the court-fee of Rs. 1,150/- was supplied with an application for further time on the ground that he was under a wrong impression about the amount of court-fee and in the court that day only he came to know that additional court-fee of Rs. 283.50 was needed. He prayed for time as he had not brought the additional amount required for purchase of court-fee stamps. On the application being allowed, the remaining court-fee was paid on the next date. The only purpose of mentioning these facts is that the plaintiff was really never short of money to pay the court-fee but this had happened either due to non-availability of court-fee stamps or due to mistaken impression there was a shortage of Rs. 283.50 on the second occasion. On these facts no inference against the plaintiff can reasonably be raised as to his incapacity to pay the court-fee.
14. Proceeding now to the second aspect of plaintiff's financial capacity. The defence case was that the plaintiff was short of money and had himself desired not to get the reconveyance made in his favour. When considering this, it will be better to bear in mind the admitted facts first. The plaintiff himself was the previous owner of the land. He had sold the land in question to defendant on 3-7-1973 for Rs. 15,000/-. The same day the defendant had executed the agreement of reconveyance agreeing to reconvey the property to the plaintiff within two years for exactly the same consideration of Rupees 15,000/-. On 30-1-1974 the plaintiff and his brother together sold some of their land for Rs. 30,000/- vide Ext. 5 in which plaintiffs share of the consideration was Rs. 15,000/-. After the suit was filed on 2-6-1975, the plaintiff and his brother executed two more sale deeds on 9-12-1975 (Ext. 4 and Ext. A 2} for Rs.9000/- and Rs.6500/-. Thus, the plaintiff admittedly had received Rs. 15,000/-
On 30-1-1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the sale deed and also expressing his readiness and willingness. There is no evidence on the record that between 30-1-74 and the date of suit or there after the plaintiff had parted with this money.
15. Stress has been laid by the Courts below on the statement of P.W.2 that the land was sold to him by plaintiff for the purpose of obtaining reconveyance from defendant. Purpose of obtaining reconveyance is very vague thing and may even mean financing of litigation in connection with reconveyance. Evidence in the suit was recorded in Jan., 1977 and in Dec., 1975 the suit was already pending and the entire court-fee stood paid by 11-9-1975. It is quite possible that the plaintiff may have utilised some money out of Rs. 15,000/- and then to supplement it more money may have been needed. However, no question about his financial status were put to the plaintiff despite his statement that he kept his money with his father-in-law who lives in Delhi. From the statement of the plaintiff, in the light of admitted or proved facts, it is not reasonably possible to conclude that plaintiff ever lacked in financial capacity to perform the agreement.
16. Apart from this, S. 16 of the Specific Relief Act only requires that a person should be ready and willing to perform the terms of the contract but does contemplate the eventuality of a suit. A person may be fully equipped for performing the contract but if, for any reason, circumstances compel him to seek recourse by way of suit, he may find himself in a situation that he may be unable to manage the extra expenses required for litigation. The capacity to perform the contract and the capacity, to finance litigation are two distinct aspects. Mere Incapability to fend for the litigation cannot necessarily lead to the conclusion that he lacks money for performing his part of the contract. In view of this in my opinion, the approach of the courts below in this matter was erroneous and contrary to law.
17. The courts have failed to consider the effect of the notices in a correct perspective and have also failure to pay the court-fee initially. On an examination of this evidence in the light of what has been observed earlier the conclusion is irresistible that the plaintiff had successfully proved that he was ready and willing to perform his part of the contract and had the necessary financial capacity for the same.
18. The last question that arises is regarding the relief that can now be granted since the land in question is said to have been acquired after filing of the suit. The learned counsel for the respondent has vehemently urged that after the land has been acquired its corpus has ceased to exist and no decree for specific performance can now be granted. In my opinion with the acquisition of the land plaintiffs right do not get extinguished in totality. The appellate court always suitably mould the relief which the circumstances of the case may require or permit. The power in this regard is ample and wide enough. Respondent's contention was that if during consolidation proceeding any land covered by the agreement is altered, relief of specific performance cannot be granted. For this he relied on Piarey La! v. Hori Lal, AIR 1977 SC 1226. In that case defendant's plea of frustration of the contract sought to be specifically enforced was accepted as the original plots had been allotted in another holding and some now plots had been allotted to the defendant in lieu thereof. It was held by the Supreme Court that the defendant was only bound to execute a proper conveyance of 'the property' which was the subject-matter of contract of sale and not of any other property. Once he lost that property as a result of the scheme of consolidation and his right, title or inierest therein ceased under law the agreement for sale became void within the meaning of S. 56 of the Contract Act. However, in the present case the properly has not been totally lost. What happens in the case of the acquisition is that for the property compensation payable in lieu thereof get substituted. On the other hand in consolidation proceedings the party loses all rights in the original holding and new rights are created in the land allotted to him in lieu thereof. In view of this even if the contract may not now be capable of being performed specifically yet the plaintiff can still seek relief by proceeding against the amount awarded as compensation for the land agreed to be sold. It is not correct to say, therefore, that due to acquisition the contract itself has been frustrated. The respondent's contention is therefore rejected.
19. The appeal is accordingly allowed;
with costs. The judgment and decree under appeal are set aside.
20. If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realisation of compensation payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium; and interest due thereon. The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event the defendant shall be further liable to pay interest at the rate of twelve percent from the date of realisation by him to the date of payment on the entire amount realised in respect of the disputed land.
21. Appeal allowed.