Madhya Pradesh High Court
Murlidhar Pinjani And Anr. vs Smt. Sheela Tandon And Anr. on 6 February, 2007
Equivalent citations: 2007(3)MPHT89
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT Arun Mishra, J.
1. This appeal has been preferred by the defendants aggrieved by judgment and decree dated 3rd August, 1995 delivered by Ist Addl. District Judge, Bhopal in Regular Civil Suit No. 44-A/91.
2. Plaintiff/respondent No. 1 has filed a suit for specific performance of an agreement (P-1) dated 18-10-88 with respect to 2.47 acre of land situated at Village Badwai, Tehsil and District Bhopal. Total consideration payable was Rs. 2,61,820/-, out of the said amount 10% earnest money, that is Rs. 26,182/-was paid. It was agreed that within one month of obtaining permission from Urban Land Ceiling Department by the defendants, the sale deed would be executed, intimation was to be given within one month, thereafter the sale deed was to be executed after payment of remaining consideration to defendant Nos. 1 and 2. On 14-1-89 a notice (P-2) was given to plaintiff regarding permission having been obtained by defendants. However, after enquiry plaintiff came to know that no such permission was accorded. A reply (P-6) to the notice was sent mentioning that no permission was obtained and if it was obtained to send the photo-copy of the permission. On 29-4-89, defendant Nos. 1 and 2 again intimated about the permission, but by that time Civil Suit No. 68/89 was filed by Balmukund against Amarsingh in which plaintiff and defendants were also the parties. Balmukund asserted his own possession over the suit land, interim injunction was granted to maintain status quo, ultimately application for injunction was rejected on 10th July, 89 an appeal was preferred against the order of rejection of prayer, appeal was also dismissed by Ist Appellate Court on 4th August, 1989, another notice (P-3) was served on 24th March, 1990 to execute the sale deed within fifteen days. Civil Suit No. 68/89 filed by Balmukund was dismissed in default of 25-6-90, the suit in question was filed on 21st October, 1991.
3. Plaintiff averred that plaintiff was ready to purchase the suit land all the time and still ready to get the sale deed registered after payment of remaining consideration, defendants did not carry out their obligation, consequently, the suit was filed.
4. Defendant Nos. 1 and 2, in their written statement, denied the averments except the execution of agreement, they denied receipt of earnest money, they had purchased the land from one Balveer Singh on 8-6-88, plaintiff was not in a position to purchase the suit land, hence, he got the civil suit filed in collusion with said Balmukund. So as to prolong the matter, he filed another Civil Suit No. 48-A/90 for declaration of title and injunction. The defendants obtained permission under Ceiling Laws on 14-6-89 and filed copy in the civil suit filed by Balmukund in which plaintiff was also a party, thus, plaintiff was aware of factum of grant of permission by Urban Land Ceiling Authority. Both the civil suits were later on dismissed by the concerning Courts. Plaintiff did not bother to get the sale deed registered within stipulated time after having intimation of permission, thus, plaintiff was not entitled for specific performance of agreement.
5. The Trial Court has found that agreement dated 18-10-88 was executed, 10% earnest money was paid, the boundaries depicted of the disputed land by the plaintiff were correct, the plaintiff has remained ready and willing to purchase the property as per agreement. In spite of that defendants have not executed the sale deed and performed their obligation. Suit of the plaintiff has been decreed. Dissatisfied with the judgment and decree this appeal has been preferred by defendants.
6. Shri Alok Aradhe, learned Counsel appearing for defendants/appellants has submitted that agreement was entered into on 18-10-88, suit was filed on 21st October, 1991, exactly on the date expiry of three years period, thus, suit was filed belatedly. Notice (P-3) was issued on 24th March, 1990, thereafter the plaintiff waited to file the suit for one year seven months, thus, plaintiff cannot be said to be entitled for specific performance. He has relied upon decision of the Apex Court in Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi and Ors. , Veerayee Ammal v. SeeniAmmal , K.S. Vidyanadam and Ors. v. v. Vairavan , and lastly on decision of this Court in Vijay Bhadur and Champalal v. Surendra Kumar . He has also submitted that plaintiff, namely, Sheela Tandon did not enter the witness box, her husband Satyakam Tandon was examined as a witness as such an adverse inference ought to have been drawn as against plaintiff, it be inferred that she was not ready and willing to perform her part of the contract, that is why she has not entered the witness box.
7. Shri S.A. Sobhani and Shri Madan Singh, learned Counsel appearing on behalf of respondent No. 1 submitted that time is not the essence of the contract in a case of an agreement with respect to purchase of immovable property as held by the Apex Court in Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor . He has further submitted that the case set up in defence that Balmukund was set up by the plaintiff so as to delay the execution of sale deed has not been suggested in the cross-examination. Plaintiff's husband was a competent witness to depose for wife, yet another agreement was executed in favour of husband, with respect to that another civil suit was filed by Satyakam, that has also been decreed, out of that F.A. No. 288/95 arises, thus, no adverse inference need be drawn in the circumstances of the case due to non-examination of plaintiff, readiness and willingness has been established, no such circumstance has been brought on record to show that how the defendants have been put in disadvantageous position, there was no delay, in the circumstances of the case, as in the intervening period civil suit was filed, injunction was granted and effort was made by defendants to execute the sale deed in favour of some other person, thus, the discretion to decree the specific performance has been rightly exercised by learned Court below on proper considerations, no case is made out in this appeal to interfere with the said discretion exercised by the Trial Court, specific performance has to be ordinarily granted when an agreement has been proved.
8. It has not been disputed in this appeal that agreement was entered into on 18-10-88, consideration of 10% earnest money, that is Rs. 26,182/- was also paid. Plaintiff has averred in Paragraph 7 of the plaint about readiness and willingness to purchase the property right from beginning and Satyakam, husband of plaintiff, has also deposed that plaintiff was ready and willing to purchase the property as per agreement. Thus, finding recorded by Court below as to readiness and willingness of plaintiff to purchase the property is found to be correct. No effective cross-examination of Satyakam has been made by defendants to show that he was not ready and willing to purchase the property, it was not suggested that he had set up Balmukund and got filed civil suit on the strength of adverse possession, in absence of putting the case in cross-examination, it cannot be said that plaintiff got filed the suit through Balmukund, even otherwise there was no reason for the plaintiff to set up Balmukund to file a suit which was filed as plaintiff himself was claiming the right under the agreement in question dated 18-10-88 and had paid earnest money of Rs. 26,182/-. Though it was denied in written statement that earnest money was received, but at the stage of evidence it was admitted that earnest money was received.
9. Submission raised by Shri Aradhe that adverse inference ought to have been drawn by the Trial Court due to non-examination of plaintiff/Smt. Sheela Tandon, in view of the statement of her husband that he was special power of attorney holder of plaintiff and even otherwise spouse is competent to depose for other as provided under Section 120 of Evidence Act. It has also come on record that Satyakam was managing affairs of his wife Ms. Sheela Tandon as such no adverse inference need be drawn in the circumstances of the case against the plaintiff.
10. Coming to facet of submission of Shri Aradhe that there was delay in institution of the suit, no doubt about it that the suit was filed on the day of completion of three years period from the date of execution of agreement. Though the limitation under Article 54 of Limitation Act commences from the date of refusal, but it is also clear that plaintiff need not wait for seeking specific performance of an agreement for a period of three years, it has to be considered in the facts and circumstances of the case whether there was such delay which disentitles the plaintiff to seek specific performance of an agreement to sell and put defendants at disadvantageous position. In the instant case, not even a single circumstance has been brought on record to show that how the defendants were put at a disadvantageous position. Apart from that it was necessary upon the defendants to intimate the factum of obtaining permission from Urban Land Ceiling Department. When such permission was obtained that precise date has not come on record, a wrong notice (P-2) was served on 14-1 -89 intimating that permission was obtained, a reply (P-6) was sent on 30th January, 89 mentioning that photo-copy of NOC be sent in case it has been obtained. There is nothing on record to show that photo-copy of the permission obtained was sent by defendant Nos. 1 and 2 to plaintiff. Thereafter notice (P-3) was served on 24-3-90 by the plaintiff to execute the sale deed, requesting the execution of sale deed within fifteen days from the date of notice. In the civil suit filed by Balmukund status quo was ordered to be maintained on 3-5-89, however, that was vacated on 10th July, 1989, suit was dismissed on 25-6-90. Plaintiff has also filed C.S. No. 48-A/90 to restrain the defendants from alienating the suit property. Time is not the essence of the contract in the case of sale of immovable property as held by the Apex Court in Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor (supra). No specific time limit was fixed, it has not been suggested that there was escalation in the prices during the intervening period of one year seven months after service of notice till filing of the suit nor any other circumstance has been brought on record so as to disentitle the plaintiff from seeking specific performance of an agreement to sell.
11. The Apex Court in Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi and Ors. (supra), considered the question of condonation of delay under Section 5 in the context of preliminary decree passed in a suit for specific performance of contract for sale of immovable property calling upon the purchaser to deposit the balance of consideration within the time stipulated in the decree with super added condition that in the event of default the suit would stand dismissed. The Apex Court held that it was not a preliminary decree. The Apex Court has affirmed the finding that there was procrastination on the part of the plaintiff to put the defendant in such a disadvantageous position that she was forced to sell the adjacent property to raise enough money to pay off the dues in respect of the property which the plaintiff desired to purchase. It was inferred in the circumstances that though the defendant did everything on her part, but the plaintiff avoided performing her part of the contract under one pretext or the other, therefore, was held disentitled to decree for specific performance. In the instant case, it was incumbent upon the defendant to have intimated the factum of obtaining permission from Urban Land Ceiling Authorities, photo-copy was not sent in case it was obtained, permission was obtained as per Para 20 of written statement on 14-6-89, whereas notice (P-2) was served on 14-1-89 mentioning palpably incorrect fact that permission stood obtained, when plaintiff asked a copy of it, it was not supplied, no such permission was obtained on the date of notice an false notice (P-2) was served by defendants. In K.S. Vidyanadam and Ors. v. Vairavan (supra), the agreement specified period of six months within which plaintiff had to purchase the stamp papers, it was held that rise in prices would be a relevant factor for the Court to decide whether delay or laches on part of plaintiff disentitles him to seek relief of specific performance. In the instant case, period was not fixed, factum of permission was to be intimated, it was not intimated, statement has been made by Satyakam in Para 1 that during pendency of the civil suit intimation was given that permission was obtained, that intimation is on record as P-2, but it was not brought out in the cross-examination precisely on which date permission was filed in said civil suit. No such permission has been placed on record. There are no circumstances brought on record so as to disentitle the plaintiff to seek the relief of specific performance in the instant case. In Veerayee Ammal v. Seeni Ammal (supra), Apex Court has laid down that person seeking specific performance must approach the Court within reasonable time even if time is not the essence of contract, "reasonable time" means, as soon as circumstances permit. In the circumstances of the instant case, it cannot be said that there was delay or laches on part of plaintiff. This Court in Vijay Bhadur and Champalal v. Surendra Kumar (supra), has followed the decision of Apex Court. In the said decision facts are distinguishable, availability of fund was not established for the period of one year and nine months from the date of execution of the agreement, there was variance between pleading and proof also, facts of Vijay Bhadur and Champalal v. Surendra Kumar (supra). Vijay Bhadur and Champalal v. Surendra Kumar (supra), are also distinguishable, thus, ratio is not attracted.
12. It is also trite law that once an agreement has been admitted, passing of consideration has also not been disputed, suit has to be ordinarily decreed. Discretion has been exercised by the Court below to decree the suit for specific performance, discretion cannot be said to be based on unsound reasons or such which could not have been exercised by a man of reasonable prudence.
13. Consequently, I find that scope of interference in an appeal in the discretionary order passed by Court below, is narrow, hence, no interference is called for in this appeal. Appeal being devoid of merit is hereby dismissed. Parties to bear their own costs as incurred throughout.