Allahabad High Court
Ram Autar vs Baldeo Singh on 28 March, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 19 Case :- SECOND APPEAL No. - 1302 of 2016 Appellant :- Ram Autar Respondent :- Baldeo Singh Counsel for Appellant :- Harish Chandra Mishra,Virendra Singh Counsel for Respondent :- Bashir Ahmad Khan Hon'ble Pradeep Kumar Singh Baghel,J.
1. The plaintiff is in this second appeal. He instituted a suit for specific performance. His case is that the defendant had executed a registered agreement to sell on 31.1.2007 for a sale consideration of Rs. 70,000/- in respect of one acre land out of 1.951 hectares of an agricultural plot Khasra No. 408. He paid Rs. 50,000/- as advance and the balance amount Rs. 20,000/- was to be paid at the time of execution of the sale deed by 31.1.2008 or before that.
2. The plaintiff has averred in the plaint that he was ready and willing to perform his part of contract. The plaintiff orally made request to the defendant several times for execution of the sale deed but he did not pay any attention and failed to execute the sale deed within one year which was the time mentioned in the agreement to sell.
3. According to the plaintiff, the cause of action arose when on 31.1.2008 the plaintiff did not turn up for execution of the sale deed, in spite of the due notice, on 22.1.2011. His conduct clearly demonstrates that he was not interested to execute the sale deed.
4. The defendant contested the suit and he denied that he intended to transfer his land in favour of the plaintiff. His stand is that the plaintiff is an agent of fertilizer traders and after taking commission he help the farmers to get fertilizers on credit. The farmers usually pay back the loan after harvesting season. While giving the loan the traders get the signatures of the farmers on the blank papers against the security. They insist for the photograph of the loanee also. The plaintiff gave fertilizers worth Rs. 50,000/- to the defendant for which the defendant has paid Rs. 70,000/- along with interest. After payment of the said amount when the defendant asked him to return his signed papers, the plaintiff did not return the same. After some time, he instituted this suit on the basis of those signed papers.
5. The trial court after receiving the evidence framed necessary issues. The trial court found that the plaintiff was entitled to get the sale deed executed pursuant to the agreement to sell and decreed the suit.
6. Aggrieved by the judgment and decree of the trial court, the defendant went in appeal before the Additional District Judge. His appeal has been allowed and the judgment and decree of the trial court has been set aside. The appellate court has recorded a finding that the plaintiff has failed to prove his readiness and willingness in terms of Section 16(c) of the Specific Relief Act, 1963 hence on the said ground the suit has been dismissed.
7. Learned counsel for the appellant submitted that the findings recorded by the appellate court are perverse and from the statement of the P.W.-1, Paper No. 19-Ga and various documentary evidences, the plaintiff has proved his readiness and willingness to get the sale deed executed after 31.7.2008. It was further submitted that the appellate court has illegally dismissed the suit only on the ground that the plaintiff has not filed any documentary evidence or any notice to show that he had given notice to the defendant to execute the sale deed.
8. Lastly, he urged that the plaintiff has paid substantial amount of Rs. 50,000/- as advance and only Rs. 20,000/- were due to which he was always ready and willing to pay in terms of the agreement to sell.
9. Learned counsel for the caveator / defendant respondent submitted that the finding of the appellate court that the plaintiff was not ready and willing to perform his part of contract is a finding of fact and it is based on the material on record. He further submitted that the trial court has not adverted to this issue at all and has decreed the suit of the plaintiff merely on the ground that the registered agreement to sell has been executed hence without considering other conditions for decreeing the suit for specific performance has granted the relief to the plaintiff.
10. Next he submitted that the decree for specific performance is a discretionary relief and in facts of this case it has been established that the plaintiff was not at all ready and willing for execution of the sale deed thus Appellate Court has rightly and legally dismissed the suit.
11. I have heard learned counsel for the parties and perused the record.
12. indisputably both the courts have found that on 31.1.2007 a registered agreement to sell was executed in respect of the suit property for a consideration of Rs. 70,000/-. The plaintiff had paid a sum of Rs. 50,000/- against advance and Rs. 20,000/- was to be paid within a year at the time of execution of the sale deed.
13. In the agreement to sell the period for execution of the sale deed was on or before 31.7.2008. Thus a year time was stipulated in the agreement to sell. The plaintiff has filed the suit on 24.1.2011. In his statement, as noticed by the appellate court, the appellant has not mentioned any notice. He has admitted in his cross examination that before filing the suit he has not given any notice to the plaintiff for execution of the sale deed but he has made several oral requests for execution of the sale deed. He has further admitted that even after one year period was lapsed he did not give any written notice.
14. It is significant to mention that the trial court has not adverted to this important aspect. It is trite that the grant of specific performance of contract is discretionary, yet the court is not bound to grant such a relief merely because it is lawful to do so.
15. Although the substantial amount has been paid by the plaintiff but the possession was not given to him at the time of execution of the agreement. In this case no notice was served by the plaintiff. His conduct as evidenced by his statement and the material on record proves that he was not ready and willing to perform his part of contract.
16. The agreement in question was executed on 31.1.2007 and the sale deed was to be executed in a year i.e. up to 31.1.2008 but the suit has been filed in November, 2011. The plaintiff has not given any explanation why he filed the suit after three years of the date fixed for execution of the sale deed. The only explanation which he has offered in his cross examination is that during all this period he had been requesting the defendant for performance of the contract on his part but the defendant on one pretext or another kept avoiding the performance of his part of the contract.
17. The aforesaid conduct of the plaintiff, as rightly noted by the appellate court, clearly demonstrates that the plaintiff has failed to adduce satisfactory evidence that he was always ready and willing to perform his part of contract at all material time which is a mandatory requirement under Section 16(c) of the Specific Relief Act. A careful reading of the recital in the agreement and the findings recorded by the appellate court clearly establishes that the plaintiff has failed to establish his readiness and willingness.
18. It is a well settled law that the plaintiff has to prove his readiness and willingness. Section 16 of the Specific Relief Act enjoins the plaintiff to prove readiness and willingness. It is a condition precedent for obtaining relief of grant of specific performance. It further requires that not only the plaintiff must allege in the plaint his readiness and willingness but he is obliged to prove also a continuous "readiness and willingness" to perform the contract from the date of contract. The onus is on the plaintiff.
19. The fact about readiness and willingness has to be determined from the entirety of the facts and circumstances and the conduct of the performance.
20. The Supreme Court in the case of Rajeshwari v. Puran Indoriya, (2005) 7 SCC 60 laid down the law in following terms:
"5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances....
6. The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit. ..."
21. In the case of N.P. Thirugnanam (Dead) By Lrs. v. Dr. R. Jagan Mohan Rao and others, (1995) 5 SCC 115, the Supreme Court held thus:
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the 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. 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 alongwith 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 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."
22. In P. D'souza v. Shondrilo Naidu, (2004) 6 SCC 649 the Supreme Court was considering the compliance of mandatory provision of Section 16(c ) of the Act. The Court has ruled thus:
"19. 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 contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the fact and circumstance of each case. No straitjacket formula can be laid down in this behalf.
20. The High Court upon consideration of the materials on records had arrived at a finding of fact that the plaintiffs had all along been ready and willing to perform their part of contract. The said findings are binding upon this Court as it had not been shown that while arriving at the said finding the High Court had taken into consideration any irrelevant fact or failed to take into consideration any relevant fact."
23. Therefore, what emerges is that the readiness and willingness has to be determined from the entirety of the facts and it is relevant to the intention and conduct of the parties concerned. In the event the Court comes to conclusion that the requirement under Section 16(c) of the Specific Relief Act is lacking, which is a mandatory provision, then the Court is not bound to grant specific performance and it has to dismiss the suit.
24. As noted above, one year time of the agreement was up to 31.1.2008 but the plaintiff has filed the suit in November, 2011. He has clearly admitted that he did not give any notice and made only oral requests to the defendant. This fact has been denied by the defendant in his oral evidence stating that the plaintiff has never made any request.
25. The plaintiff has to establish his readiness to perform his part of contract throughout the relevant point of time. Applying these principles on the facts of the present case, I find that the appellate court has not committed any error in dismissing the suit of the plaintiff.
26. The jurisdiction of this Court under Section 100 C.P.C. is well settled, if the first appellate court has considered all the evidences and has recorded a finding of fact, this Court will not reappreciate the evidence again unless the order suffers from perversity and a substantial question of the law arises.
27. In Biswanath Ghosh (Dead) By Legal Representatives and others v. Gobinda Ghosh alias Gobindha Chandra Ghosh and others, (2014) 11 SCC 605, the Supreme Court took note of its earlier decision, Sugani v. Rameswar Das1 and quoted those observation with approval.
"24. In Sugani v. Rameshwar Das, this Court observed that: (SCC pp. 598-99, para 15) "15. ''5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witness accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
28. Keeping the above law in mind, I am of the view that appellant has failed to make out a case for interference under section 100 of the Act. The appeal lacks merit and is accordingly dismissed.
29. No order as to costs.
Order Date :- 28.3.2017 Digamber