Rajasthan High Court - Jaipur
Chander And Ors vs Ghutmal And Ors on 2 September, 2019
Author: Chief Justice
Bench: Chief Justice
(1 of 11) [SAC-46/2002]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Civil) No. 46/2002
In
S.B. Civil Regular First Appeal No. 56/1981
1. Chander s/o. Shri Dalla, by caste Mev, Resident of Village
Chanduki, Tehsil Alwar, Distt. Alwar (Raj.).
2. Khillu son of Chander Bhan (since deceased) through:-
2/1. Raunak W/o. Khillu, aged about 65 years.
2/2. Jamu Khan s/o. Chyander Bhan, aged about 35 years.
2/3. Tappu s/o. Chyander Bhan, aged about 32 years.
2/4. Shokin S/o. Chyander Bhan, aged about 25 years.
3. Kamroo Son Of Chander Bhan
4. Mst. Chandu wife of Patela (deleted since deceased).
5. Moharbi D/o. Paela, W/o. Hariya (deleted since deceased)
All Residents of Village Chanduki, Tehsil Alwar District, Alwar
(Rajasthan).
....Defendant-Appellants
Versus
1. Ghutmal son of Shri Summi (since deceased) through:
1/1. Ashru s/o. Ghutmal.
2. Surem son of Shri Summi (since deceased) through:-
2/1. Kamli W/o. Surem.
2/2. Vatan S/o. Surem.
2/3. Karchand S/o. Surem.
3. Hari Singh alias Harli son of Shri Summi (Since Deceased)
through:-
3/1. Akbari W/o. Late Hari SIngh, R/o. of Village
Gajuka, Tehsil and District Alwar (Raj.).
3/2. Jakar s/o. Late Hari SIngh, Resident of Village Gajuka,
Tehsil and District Alwar (Raj.).
4. Nannu S/o of Chhitar (deleted since deceased)
All by caste Meb, R/o. Village Chanduki Tehsil and District
Alwar (Raj.)
......Plaintiff-Respondents
5. Kundan Lal son of Shri Nirmal Dass Khatri, R/o. Hope Circle, Alwar (Rajasthan)- deleted since deceased.
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6. Sunder Lal son of Shri Ram Narain Khatri, R/o. Hope Circle, Alwar (Rajasthan)- deleted since deceased.
.....Defendants-Respondents For Appellant(s) : Dr. P.C. Jain, Adv. with Mr. Sameer Jain & Mr. Jishan Khan, Adv.
For Respondent(s) : None
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment (Per: Hon'ble Sanjeev Prakash Sharma, J.) Reserved on 18/07/2019 Pronounced on 02/09/2019
1. This appeal is by the defendants; they impugn a judgment dated 20/03/2002 passed by the Single Bench of this Court which affirmed the judgment and decree dated 28/02/1981 passed by the Additional District Judge No.1, Alwar (hereafter "the trial court") decreeing plaintiff (respondent's) suit for specific performance of contract dated 27/02/1974.
2. After filing of this special appeal, the original appellant expired; as did the plaintiff/respondents. Their legal representatives were impleaded; the latest amended cause title dated 19/12/2016 is taken on record. The special appeal was preferred prior to coming into force of the amendment made inserting Section 100-A CPC whereby such appeals were barred - against the judgment of the Single Judge before the Division Bench. The special appeal is held to be maintainable since the said provision came into force after its filing.
3. It is further noticed that the appeals before the Single Judge as well as before this Court were preferred by the third and fourth defendants, who claimed that they had already entered into an agreement earlier with the promisers- first two defendants to purchase of the suit property by agreement dated 25/09/1973. They also claimed that they had executed a sale deed accordingly in their favour from the promisers on 28/05/1974.
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4. The entire gamut of arguments raised before this Court is in therefore, is in relation to the question whether the defendants (referred to as appellants) had executed an agreement in earlier point of time than the plaintiffs with the promisers (i.e. owners) and what would be the effect of the execution of sale deed in their favour on the basis of such an agreement.
5. Dr. P.C. Jain, learned counsel, appearing for the defendants argued at length canvassing that the Single Judge of this Court erred in upholding the findings of the trial court with regard to the agreement entered by the appellants with the promisers allegedly on 25/09/1973 (Exhibit-A-4) as doubtful. Learned counsel submits that the agreement dated 25/09/1973 was in-fact entered into and was a specific defence taken in the written statement by the first two defendants and also the promisers and that since the plaintiffs were not ready and willing to perform their part of contract, the promisers proceeded further with the prior agreement entered with the appellants on 25/09/1973 and executed the sale deed for a sum of ₹43,000/-. It was also submitted that an advance amount of ₹1000/- was paid consequent to the agreement dated 25/09/1973 and on the basis of a subsequent agreement dated 27/02/1974, the plaintiffs could not have claimed specific performance. It is submitted that the defendants-appellants cannot be bound down by the subsequent agreement which the Defendant Nos.1 and 2-promisers entered with the plaintiffs.
6. Learned counsel for the appellants further submitted that for the filing a suit for specific performance, it is necessary that the plaintiff should aver in the pleadings that he is ready and willing to perform his part of agreement and in absence thereto, such a suit was liable to be rejected. He relied upon judgment in Smt. Dhanbai Vs. Pherozshah: 1970 RLW 594.
7. Learned counsel for the appellants submitted alternatively that even if the agreement dated 27/02/1974 facially discloses that it contains a default clause which mentions that in the event of the agreement not performed, the promisers are liable to pay a sum of ₹2000/- each to Plaintiffs no. 1 and 4 and ₹5000/-
collectively to Plaintiffs no.2
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failure on the part of plaintiffs, each of the plaintiffs were to pay ₹5000/- to the promisers. Thus, he submits that as a relief to that effect has also been claimed, the suit for specific performance ought not have been decreed. He relied on judgment in Dadarao & Anr. v Ramrao & Ors.: (1999) 8 SCC 416.
8. While notices on all the respondents were originally served and even the legal heirs have been served, no one appeared on their behalf.
9. This court has considered through the judgment passed by the learned Single Judge of this Court dt. 20/03/2002 as also the judgment and decree passed by the learned trial court dt.28/02/1981. The court has also considered the records.
10. The appellants question the authenticity and validity of the agreement dated 25/09/1973 (Exhibit-A-4) said to have been executed between them and the Defendants no.1 and 2- Promisers. The agreement to sell (dated 25/09/1973) in favour of the appellants was executed by one Kundan Lal. The evidence on record, is that the other executant-Sundar Lal subsequently signed. The land was agreed to be sold by Defendants No.1 & 2 to defendants no.3 & 4 at the rate of ₹4000/- per bigha (total sale consideration of ₹43,000/-) and ₹1,000/- was received as advance. While the agreement dt.27/02/1974 (Exhibit-A-1) was entered between the plaintiffs in subsequent point of time, the price fixed was ₹2,000/- per bigha. Thus, the Single Judge and the Trial Court doubted the said agreement (Exhibit-A-4) as it was impracticable for any agreement to be subsequently contracted for a lower price. It is noticeable in this regard that no explanation is forthcoming on behalf of the appellants (or the defendants No.1 and 2) in their pleadings or evidence. Therefore, this Court also agrees on this aspect.
11. Another aspect to doubt the existence of such an agreement of a prior date, is reflected from the attending circumstances which have been noted by the Single Judge as under:-
"I have once again gone through the evidence of the parties in this regard. True it is that defendant no. 1 and 2 have admitted the execution of the agreement Ex. A-4 but then they had no other option, and in view of the fact, as rightly noticed by the learned court below that the litigation was going, on wherein the (Downloaded on 02/09/2019 at 09:31:55 PM) (5 of 11) [SAC-46/2002] defendants no. 1 and 2 were having an upper hand, as orders were passed in their favour, so much so that as deposed by some of the plaintiff's, that at the time of entering into the agreement Ex. 1, the plaintiffs were under arrest by the police. In such circumstances it is undoubtedly a weighty circumstance, tilting the preponderance of probabilities in favour of the plaintiffs, viz. that if till then Ex. A-4 were in existence, their could possibly be no occasion for the defendants no. 1 and 2 to go for Ex. 1, as in that event either lis would have been between the appellants and plaintiffs, or the defendants no. 1 and 2 were supporting the cause of the appellants and would have executed the sale deed in their favour, but would not have gone for the agreement Ex. 1. It is in this background, that the evidence led on record does indicate, that agreement Ex. 1 was arrived at in the nature of a compromise, by intervention of respectable persons."
12. The court notes that DW-1-Kundan Lal, admitted that he entered into the agreement with the appellants. He deposed to having told the plaintiffs (Ghutmal & ors.) of having agreed to sell the land -to the present appellants, upon which the plaintiffs asked him to execute the agreement in their favour. Subsequently Exhibit-A-1 was executed, to silence the plaintiffs. However, in cross-examination, he admitted to not remembering when, and on what date the agreement with the appellants was executed. DW- 1-Kundan Lal also admitted that he had sent a notice to Ghutmal and others for getting the agreement executed. He has admitted of having executed Exhibit-A-1. He stated that he signed on Exhibit-A-4 on directions of Kundal Lal (DW-1). He denies and pleads ignorance relating to purchase of stamps. He also pleaded ignorance with regard to the crops cultivated. Another witness Ram Narayan (DW-9) denied the positive suggestions of Exhibit-A- 4 having been subsequently prepared after the Exhibit-A-1.
13. None of the witness has explained about the price mentioned, as noticed above. Interestingly, Sundar Lal (DW-3) stated that at the time of entering into agreement, crop of 'Sarsu' and 'Arhar' (i.e. mustard) was standing which is a 'Ravi' crop and is not harvested in the month of September when the alleged agreement dated 25/09/1973 (Exhibit-A-4) was said to have been executed while the plaintiff has deposed that the crop of mustered (Downloaded on 02/09/2019 at 09:31:55 PM) (6 of 11) [SAC-46/2002] and 'Chana' was there at the time of entering into agreement dated 27/02/1974. Therefore, the circumstance whether the agreement was entered into on 25/09/1973 is doubtful; the court is in agreement with and concurs with the findings of the Courts i.e. the trial court and the Single Bench (that the agreement (Exhibit-A-4) was backdated and prepared subsequently) to create evidence and counter the plaintiffs claim for specific performance of the agreement Exhibit-A-1 dt.27/02/1974.
14. The next question that arises is whether the plaintiffs were always ready and willing to perform their part of the agreement and have averred in the pleadings. In paras no. 9 and 10 of the plaint, it has been mentioned by the plaintiffs as under:
"9- ;g fd oknhx.k ges'kk eqrkfcd bdjkjukek vius ikVZ vkQ nh dksUVªsDV iwjk djus ds fy;s rS;kj jgs gS o vkt Hkh rS;kj gSA 10- ;g fd oknhx.k izfroknhx.k ds ikl dbZ erZck fnukad 18&5&74 ls iwoZ ,d lIrkg ds nkSjku x;s vkSj ;g dgk fd izfroknhx.k cdk;k tjs c; ysdj c;ukesa dh rdehy oknhx.k ds gd esa eqrkfcd eqnk;nk djk nsosa ijUrq izfroknhx.k igys Vky oky djrs jgs o ckn esa bUdkj dj fn;k ftl ij rkjh[k 18-5-1974 dks oknhx.k us tfj;s Jh dSyk'kukFk HkkxZo ,MoksdsV vyoj izfroknhx.k dks uksfVl fnyok;k vkSj mDr uksfVl ds tfj;s ;g rgjhj fd;k x;k fd izfroknhx.k cdk;k tjs c; ysdj c;ukek oknhx.k ds gd esa rgjhj o rdehy djk nsosa vkSj LVkEi bR;kfn [kjhnus ds fy;s rkjh[k ls lwfpr dj ns rkfd LVkEi bR;kfn [kjhnus ds fy;s rkjh[k ls lwfpr dj nsa rkfd LVkEi bR;kfn [kjhndj c;ukesa dh rdehy djkbZ tk ldsA ijUrq eqnk;yk us dksbZ mRrj mDr uksfVl dk ugh fn;kA udy uksfVl] o jlhnkr iksLV vkfil is'k gSA**
15. Thus, the plaintiffs not only stated in their averment, in the plaint of their readiness and willingness to perform their part of the contract but also issued a notice on 18/05/1974 through their Advocate for getting the contract agreement executed to which a reply was sent by the defendants-respondents no.3 and 4 through their counsel mentioning that they have entered into an agreement with the defendants no.1 and 2. It is also stated in Para no.13 that each of the plaintiff is ready and willing to complete his part of the contract and also ready to pay the amount as per the (Downloaded agreement to the on 02/09/2019 defendants at 09:31:55 PM) no.1 and 2. In (7 of 11) [SAC-46/2002] reply, the respondents stated that they have given a notice on 24/05/1974 to the plaintiffs for getting the agreement (Exhibit-A-
1) executed. However, it is noticed that the sale deed was executed by the first two defendants in favour of the third and fourth defendants immediately thereafter on 29/05/1974. Thus, we find that both the courts i.e. the trial court and the single Bench reached the correct conclusion that the plaintiffs were ready and willing to get the sale deed executed in terms of the agreement (Exhibit-A-1) but their attempts were thwarted by the first two defendants, who, while sending a notice on 24/05/1974 for agreeing to get the agreement (Exhibit-A-1), within five days, executed a sale deed in favour of the third and fourth defendants (the appellants herein).
16. The written statements of the first two defendants and the evidence on record, show that both the Courts i.e. the Trial Court and the Single Bench - in the opinion of this court correctly held that the plaintiff was always ready and willing to perform his part of the contract.
17. In Smt. Dhanbai Vs. Pherozshah (supra), the Single Judge of this Court held as under:-
"11. In view of these clear pronouncements, there can be no doubt that a suit for specific performance will not disclose a cause of action, and will not be maintainable, if the plaintiff does not make an averment in the plaint that he is ready and willing to perform his part of the contract ."
18. This court holds and finds that there is an averment and also a denial on the part of the respondents. The plaintiff's evidence, by way of oral statement, specifically mentions regarding readiness and willingness to purchase the land. Clearly, the plaintiff satisfied that the requirement in terms of the law.
19. As regards the third aspect which the appellants urged, i.e. in relation to the agreement having a stipulation with a default clause, we find that there is a stipulation that if the agreement is not executed and the vendee refuses to secure execution of the sale deed, the sellers would be entitled to receive ₹5,000/- each from all the purchasers and also forfeit the advance amount and if the sellers refuse to(Downloaded execute, the purchasers on 02/09/2019 at 09:31:55 PM)would be entitled to (8 of 11) [SAC-46/2002] receive sum of ₹5,000/- each. The learned Single Judge has considered such a stipulation as an alternative stipulation quantifying liquidated damages to be claimable in the event of breach of contract.
20. In Dadarao & Anr. Vs. Ramrao & Ors. (supra), one Balwantrao had entered into an agreement to sale with one Tukaram Devsarkar on 24/04/1969 and it was mentioned therein that om case the sale deed is not made in addition of earnest money, an amount of ₹5,000/- shall be given and taken and no sale deed will be executed. As the sale deed was not executed, a suit for specific performance was filed by Tukaram. During pendency of the suit, the sale deed was executed in favour of appellant no.2. Keeping the aforesaid aspect in mind, the Supreme Court held as under:-
"6. The relationship between the parties has to be regulated by the terms of the agreement between them. Whereas the defendants in the suit had taken up the stand that the agreement dated 24th April, 1969 was really in the nature of a loan transaction, it is the plaintiff who contended that it was an agreement to sell. As we read the agreement, it contemplates that on or before 15th April, 1972 the sale deed would be executed. But what is important is that the agreement itself provides as to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs. 1,000 a sum of Rs. 500 was to be given back to Tukaram Devsarkar and that "no sale deed will be executed". The agreement is very categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of anyone of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs. 500, in addition to the return of Rs. 1,000, was the only sum payable. This sum of Rs. 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs. 1,000.
7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1,000 plus pay Rs. 500 in addition (Downloaded thereto.
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no obligation on Balwantrao to complete the sale transaction."
21. On an examining the above aspects, and a plain reading of Exhibit-A-1, reveals that while the agreement contains a stipulation for payment of ₹5,000/-, there is no stipulation that the contract shall not be executed. Thus, in other words, it was not intended to be a substitute for performance of the contract. It cannot be said that an option clause was available in the agreement. Consequently both parties were always free under the agreement to claim specific performance of the contract.
22. Learned counsel for the appellants also invited attention of this Court to Section 21 of the Specific Relief Act and submitted that the compensation for breach of the performance of the contract should be allowed in alternate.
23. This court finds that the Single Judge of this Court while deciding the first appeal examined this aspect as well and has observed that such provision can only be pressed into service where the plaintiff has claimed any such compensation in his plaint in terms of Section 21 (5) of the Specific Relief Act and it is for the plaintiff alone who can even seek amendment at any stage for seeking such compensation and the Court shall on such an application allow him to amend the plaint for including a claim for such compensation. The learned Single Judge however rejected such a claim. An examination of the claim and relief clause shows that an alternative relief has been sought, in Para 5 of the plaint.
24. Section 21 of the Specific Relief Act provides as under:-
"21. Power to award compensation in certain cases.--(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach 1 in addition to such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation (Downloaded accordingly.
on 02/09/2019 at 09:31:55 PM) (10 of 11) [SAC-46/2002] (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.
Explanation.--The circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section."
25. In Velayudhan Sathyadas Vs. Govindan Dakshyani (2010) 15 SCC 722, the Supreme Court observed as under:
"6. It is clear that mere establishment of the facts that the agreement for sale had been entered into is not sufficient to grant a decree for specific performance and if the circumstances as indicated in Section 20 of the Act, exist in a particular suit, the court ought to certainly exercise its discretion in favour of the defendant and give lesser or limited relief to the plaintiff as indicated in Section 21 of the Act. Therefore, in the present case while the High Court referred to certain aspects rather vaguely without clearly setting out what those aspects are, the order of the High Court cannot be sustained."
26. In Urmila Devi & Ors. v Deity Mandir Shree Chamunda Devi & Ors.: (2018) 2 SCC 284, the scope of Section 21 of the Specific Relief Act was examined and relying on judgment passed in Jagdish Singh Vs. Nathu Singh: (1992) 1 SCC 647, the Supreme Court proceeded to grant compensation to the plaintiff. A similar approach is discernable in Kanshi Ram Vs. Om Prakash Jawal (1996) 4 SCC 593.
27. In the facts of this case, however, the court is of opinion that the exercise of discretion to grant compensation, would not further the interests of justice. The plaintiff had entered into a bona fide agreement to purchase the property: merely to thwart that commitment, the owner (defendant Nos 4 and 5) entered into an agreement with the appellants. The plea sought to be put forward was that the agreement with the plaintiff was for inadequate consideration. However concurrently the trial court and the single (Downloaded on 02/09/2019 at 09:31:55 PM) (11 of 11) [SAC-46/2002] judge have not believed the credibility of that defense and have even rejected the agreement which the appellant is alleged to have entered into, previously with the owners. The owners have, by all accounts, accepted the concurrent findings. In these circumstances, it would be a travesty of justice to deny specific performance and direct compensation to the plaintiff by exercising jurisdiction and granting the alternative claim.
28. In the light of the above discussion, the appeal has to fail; it is therefore, dismissed. All pending applications too are dismissed.
(SANJEEV PRAKASH SHARMA),J (S. RAVINDRA BHAT),CJ Raghu/ (Downloaded on 02/09/2019 at 09:31:55 PM) Powered by TCPDF (www.tcpdf.org)