Patna High Court
Chandrabali Shah vs Pritam Singh on 29 September, 1964
Equivalent citations: AIR1965PAT211, AIR 1965 PATNA 211
JUDGMENT K. Ahmad, J.
1. This appeal is by the defendant. It arises out of a suit for specific performance of contract for sale in respect of 15 kathas of land out of municipal survey plot No. 2057/C bearing new municipal holding No. 1459 in the Municipality of Ranchi. The total area of this survey plot No. 2057/C is .82 acre. It appears that this plot was originally a ditch but recently it has now been all got filled up by the defendant who is its admitted owner. The defendant is at present a partner of Dhiman and Company along with one N. R. Dhiman. The case of the plaintiff is that there was a contract for sale made between the parties with respect to the aforesaid 15 kathas of land in two parts. The first part of the contract, according to the plaintiff was in respect of 10 kathas of the land, 5 kathas constituting the front portion and the other 5 kathas the back portion of the aforesaid plot.
This part of the contract is said to have been completed in December 1958. Therein the price of 5 kathas of the front portion is said to have been settled for Rs. 3250/- that is at the rate of Rs. 650/- per katha and that of the back portion of 5 kathas at Rs. 2,250/-, that is to say, at the rate of Rs. 450/- per katha. According to the plaintiff, this part of the contract was negotiated on behalf of the defendant by N. R. Dhiman who is said to have on its conclusion received a sum of Rs. 500/-as earnest money for the same and thereafter to have sent to the plaintiff a telegram and a letter both dated 17th December, 1958, on behalf of the defendant in confirmation of it and further demanding therein the balance of Rs. 5000/- along with the necessary registration cost for its final completion. At this the plaintiff is said to have gone to Ranchi ready for the completion of the sale deed but on arrival there he found that the ditch was not yet filled up as was undertaken by the defendant at the time of the contract. Therefore, the finalisation of the sale deed was for the time being postponed till the ditch was got completely filled up.
2. Thereafter, it is said the second part of the contract was concluded on the 3rd January, 1959, but this was done directly between the parties. Thereunder not only the first part of the contract was affirmed but also the rest of the 5 katha land in suit was agreed to be sold by the defendant to the plaintiff at the rate of Rs. 450/- per katha. A further sum of Rs. 500/- is also claimed to have been then paid by way of advance towards the total price of all these lands and in proof thereof there was a separate receipt as well granted on that very date. It is, however, said that as the work over the ditch was not progressing satisfactorily, there was a further sum of Rs. 2,000/- paid by the plaintiff to the defendant sometime in February 1959 by way of advance towards the total consideration of the entire contract and this time it was clearly understood between the parties that the work over the ditch would be definitely completed by March and the contract thereafter finalised in April, 1960. Accordingly on 15-4-1960 the plaintiff is said to have gone to the defendant for the final execution of the sale deed. But now the defendant is said to have totally refused to do it unless the plaintiff was willing to increase the price of land to Rs. 1000/-per katha. This the plaintiff did not accept and thereafter on service of notice both on the defendant and N. R. Dhiman for the performance of their part of the contract, he instituted the present suit for the specific performance of the entire contract.
3. In answer to the suit, there were a number of picas raised by the defendant. In substance, the defence taken was that there was never any contract concluded between the parties for the sale of the lands in suit, and the talk that was there was still in a stage of negotiation. And even if there was any that was not enforceable in law inasmuch as the first part of the contract was entered into on behalf of the defendant by N. R. Dhiman who had no authority to bind him to its terms; and the second part of the contract suffered from the flaw that there was no term fixed at that time for the price and it was taken for granted that the sale if and when effected would be made at the rate then prevailing in the market. Further, it was also pleaded that barring the sum of Rs. 500/-, which was claimed to have been received by N. R. Dhiman, there was no oilier item of payment made by the plaintiff and as for Rs. 500/- paid to N. R. Dhiman, there was a long explanation given in the written statement.
4. Both the courts below have concurrently found that "the plaintiff in all paid only Rupees 1000/- to the defendant towards the price of land and not Rs. 3,000/-", that means, according to both of them, the plaintiff has failed to prove the payment of Rs. 2,000/- claimed to have been made by him in February, 1959. Further the story as to the finalisation of any concluded contract between the parties in December, 1958 has also been substantially disbelieved by both the courts below, though on different grounds. The trial court held that :
"......... the talk for the joint purchase of the laint really fell through after. N. R. Dhiman on his own responsibility had sent a telegram and the letter (Ext. 5) to the plaintiff. The recitals in the same in view of my findings above cannot, therefore, bind down the defendant."
On the other hand, what the court below has about it found is that:
"......there was no completed contract in December 1958 and even if there was one it was on group basis and the same broke down not at the instance of the defendant but at the instance of the intending buyers including of course the plaintiff."
The two courts below have, however, differed on the second part of the contract. The finding of the trial court on this point was that this part of the contract was vague inasmuch as there was no price or rate of price at that time fixed for the sale of the land; as such that contract was not enforceable in law. The trial court, therefore, dismissed the suit in full. In appeal the court below has accepted only a part of this finding of the trial Court, namely, to the extent that there were omission in the contract made on 3rd January, 1959, in regard to the time of sale and the price of land. But as to the unenforceability part of that contract it has observed that:
"For specific performance of the contract what is necessary is only that the terms can be ascertained. Even if we get that the agreement was that the sale would be at the market rate that is a thing which can he ascertained and in this case we have got documents on record for ascertaining the same."
Thereafter having scrutinised the entire evidence on the point of market rate, it has finally concluded that:
"I find the market rate for 5 kathas which is the front portion of the land to be at Rs. 1000/-per katha and of the remaining 10 kathas at Rupees 450/- per katha. The total price will thus come to Rs. 9500/- for the suit land. Out of that amount, the defendant has received Rs. 1000/-. He has to pay Rs. 8500/- more. From what has been stated above it follows that although there was no completed contract in December 1958 as alleged by the plaintiff, there was a concluded contract between the parties on 3-1-59. The plaintiff is obviously entitled to specific performance of contract subject to payment of Rs. 8500/- more to the defendant."
Accordingly it has finally decreed the suit in terms as stated above.
5. The defendant, therefore, has now come in second appeal. Mr. Lal Narayan Sinha, who appears for the defendant appellant, has not challenged any of the aforesaid findings of fact given by the lower appellate court and has supported the appeal exclusively on a point of law, namely, that the plaintiff in this case having never done his part of the contract as undertaken nor having even expressed his willingness to do the same up to the hearing of the suit, he is not now entitled in law to get any decree for the specific performance of what the defendant is thereunder obliged to do. In other words, the submission made by Mr. Sinha is that the price of land as now fixed by the lower appellate court was never offered to be paid by the plaintiff and the offer, if any, that he ever made was in respect of the price that he claimed to have been settled at the time of the first part of the contract. As such there was never any offer made for this payment of the price now fixed by the lower appellate court or even any willingness ever expressed for its payment by the plaintiff up to the time of hearing. Therefore, that ground by itself, it has been argued, is sufficient to non-suit the plaintiff in the present case. In support of this contention reliance has been placed by learned counsel on the decisions in Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208; Bindeshri Prasad v. Mahant Jairam Gir, ILR 9 all 705 (PC); Rustomali v. Ahider Rahaman Mia, 45 Cal WN 837 and Madan Choudhry v. Kamaldhari, AIR 1930 Pat 121.
6. In law it is undisputably well-established, as, laid down in AIR 1928 PC 208 and other cases cited by Mr. Sinha, that a plaintiff in a suit for specific performance has to allege, and if the fact has been traversed he is required to prove a continuous readiness and willingness from the date of the contract to the time of hearing to perform the contract on his part. Failure to make good that averment brings with it the inevitable dismissal of his suit. But the application of this principle obviously demands a finding of a fact as to whether there was or was not on behalf of the plaintiff a continuous readiness and willingness from the date of the contract to the time of hearing to perform his part of the obligation thereunder.
Unfortunately this point in the present case was not raised in either of the two courts below and has now been raised for the first time in second appeal. Naturally, therefore, there is no discussion made or any finding given as to this aspect of the case by either of the two courts below. Therefore, before we judge the case here from this point of view, it is necessary first to find out the exact averment that has been made about it in the plaint or in the notice that preceded it and thereafter to see whether that averment, if any, has been traversed in the written statement filed by the defendant, In the notice given by the plaintiff to the defendant there is no mention made whatsoever either about the price or the rate of price of the land agreed to be sold. All that it recites about his willingness about the payment of consideration is that:
"In spite of the fact that my client is ready and willing to purchase and otherwise perform his part of the contract to enable you to execute the sale deed for the said lands in favour of my client, you have been withholding execution of a valid sale deed in favour of my client for the said lands."
In the plaint, however, there is a definite averment made about it. That is in paragraph 16 which reads that:
"The plaintiff is still ready and willing to pay the balance amount of consideration money to defendant i.e. the sum of Rs. 4750/- or such amount as the court may deem payable for the agreed sale but since the defendant has refused in spite of receipt of notice to execute a valid sale-deed, hence the necessity of the suit. The market price of the suit land at all relevant times up to the date of suit had not been more than the price agreed upon."
This averment made in paragraph 16 of the plaint has been transversed by the defendant in paragraphs 14 and 22 of his written statement. They read as follows:
"14. Para 6 of the plaint:--Allegations are false and unfounded. No further sum of Rs. 500/- was paid to the defendant as alleged herein. No rate or terms or prices for the sale of suit land was agreed on between the parties on 3-1-59 rather it was expressly agreed that the plaintiff will purchase if he pays the price of the land in suit at the market rate which is more than Rs. 1000/- per Katha. It is false to say that a further sum of Rs. 500/- was paid."
"22. Paras 15, 16 and 17 of the plaint:--Allegations are false. No tender was ever made to this defendant. Plaintiff is not entitled to any specific performance."
Substantively, therefore, it seems that on the whole both the parties were basically under the impression that the price fixed was at the rate prevailing in the market but with this difference that according to the plaintiff, the total consideration even calculated at that rate did not exceed the figure as given by him in the plaint but according to the defendant, the price should have been calculated at the rate of more than Rs. 1000/- per katha. In other words, it seems that the main controversy between the parties which led to the present litigation was concerning the exact market rate on the basis of which the total consideration of the sale was to be finally determined. But the prevailing market rate is not any ascertained fixed figure; it is always sub-feet to fluctuation from time to time and can be a certained only after investigation Therefore, in view of what has been found by the lower appellate court, there was not in the present case any already ascertained fixed consideration which the plaintiff could have expressly or by implication refused to pay or about the payment of which he could fail to express his willingness.
The plaintiff, rightly or wrongly, was under the impression that the consideration fixed at the time of the first part of the contract was in accordance with the then market rate. And that rate may not have been the same which was prevailing in the market at the time when the plaintiff called upon the defendant to execute in the month of April 1960 and in any case was not what the defendant claimed, namely, more than Rs. 1000/- per katha. Therefore, if now on investigation the lower appellate court has found that it was Rs. 1000/- per katha for the front 5 kathas and Rs. 450/- per katha for the remaining 10 kathas of the back portion, that cannot lead to the conclusion that it was exactly at this rate that the payment of the consideration should have been offered or at least willingness for its payment should have been expressed; for it is obvious that the rate which as now found by the court was fixed between the parties was neither the one on the basis of which the plaintiff offered the consideration nor the other on the basis of which the defendant claimed the total consideration of the land agreed to be sold, That being so, it cannot be said that the rate as claimed by the defendant was the one which had been agreed upon between the parties and as the plaintiff failed in paying that amount or even expressing his willingness for the payment of the same upto the date of the suit, he is now not entitled to get any relief for the specific performance of the contract. In the present case, as now found by the lower appellate court, both the parties were incorrect in asserting their respective rates which according to the claim of each was agreed upon between them. In that view of the matter, I think: the averment made by the plaintiff in paragraph 16 of the plaint cannot be held to amount to any failure on the part of the plaintiff in affirming or in expressing his willingness to perform his part of the contract as agreed upon between the parties.
7. Mr. Sinha relying on the aforesaid decisions in AIR 1928 PC 208; ILR 9 All 705 (PC); 45 Cal WN 837 and AIR 1930 Pat 121 has submitted that in the present case there are now two established facts which unmistakably prove that the plaintiff was not willing to perform his part of the contract at any time upto the date of the suit. They are (1) that the plaintiff never offered to pay or expressed his willingness to pay the consideration of the sale deed at the rate now fixed by the court below; and (2) that he falsely claimed in the plaint to have paid by way of advance more than what was actually paid by him. Each of these facts it has been submitted, has the effect of an avoidance on the part of the plaintiff to perform his entire obligation under the contract as it actually stood and was set up with a view to falsely justify that all was offered to be done by him which he was obliged thereunder to do though actually it was not so. Therefore, according to the defendant, these facts firmly establish that the plaintiff never attempted or expressed his willingness to perform his part of the contract as it actually stood.
8. Now so far as the first point is concerned, that has already been dealt with by me. In my opinion, the difference over the rate on the basis of which the price was to be determined, was due to the conflicting construction that each party wanted to put on the terms of the contract and not due to any non-bona fide attempt on the part of the respective parties either to minimise or exaggerate the obligation of the plaintiff under the contract as it stood. Otherwise at least the plaintiff in his plaint would not have averred that "the plaintiff is still ready and willing to pay the balance amount of consideration money to defendant i.e. the sum of Rupees 4750/- or such amount as the Court may deem payable for the agreed sale". And in any case this much is unequivocally established by this averment that there was an offer made in the very plaint itself that the plaintiff was ready and willing to pay the balance as the court may deem payable for the agreed sale.
It is true that there is not any fixed amount of the balance of the consideration mentioned therein, but it was so for the reason that there was no agreement between the parties over the exact implication of the phrase "at the rate prevailing in the market" which was to provide, as is claimed to have been agreed upon, the very basis for calculating the balance of the consideration. In the present case the willingness expressed in the plaint for the payment of the balance was not rigidly in terms of his calculation alone, namely, Rs. 4750/-(as was done in the case in ILR 9 All 705 (PC) about the term of warranty of title) but alternatively also in terms "as the court may deem payable for the agreed sale". In other words, the willingness as expressed in the plaint is also in relation to any balance that may be found due by the court and not only in relation to what he then considered as still left due. Thus, in the present case it cannot be held that there was no willingness expressed by the plaintiff in the plaint for the payment of the balance of the consideration money which was left therein for the court to assess and find.
9. And the same can be said about the claim made by the plaintiff in regard to the payment of the additional sum of Rs. 2,000/-. That claim also at best had the effect of bringing down the balance of the consideration to the figure of Rupees 4750/-. If the plaintiff in his plaint, as already stated above, expressed his willingness for the payment, not only of Rs. 4750/- but any amount that was to be assessed by the court as still left unpaid, that claim as to the payment of Rs. 2,000/-cannot be any evidence of the fact that the plaintiff thereby wanted to make the payment not according to the contract as it stood but according to the contract as he liked it to stand. Therefore, even if there was any dispute about this item of Rs. 2,000/- and even If the court ultimately found that there was no proof in support of its payment, that by itself cannot affect the willingness expressed by the plaintiff in the plaint for the payment of such balance "as the court may deem payable for the agreed sale".
No doubt, had his willingness about the payment of the consideration money, as expressed in the plaint, been confined to the rigid sum of Rs. 4750/- only, as was done in AIR 1930 Pat (sic) 21 and in the case of 45 Cal WN 837 the matter would have been altogether different. In that case it would have been, I think, open to the defendant to assert that there was no willingness expressed on the part of the plaintiff to perform his part of the contract as it stood. But here the case is not that. On the contrary, in the present case, as already stated, the willingness as expressed in the plaint is also in relation to any amount that may be found still left due by the court. In that view of the matter, I think, there is no substance in the contention raised by Mr. Sinha that in the present case there was no willingness expressed by the plaintiff in the plaint as to the performance of his part of the contract as it actually was and that the willingness that was expressed therein was only in relation to the contract as it was alleged to be by him.
10. For these reasons I hold that the appeal fails. Accordingly it is dismissed but in the circum stances of the case, there will be no order for costs.