In a suit for specific
performance of contract which is a relief in equity, ordinary rule is that
specific performance ought to be granted. Refusing such relief is an
exception. In the present case, it appears from the evidence on record that
that the plaintiff had led ample evidence to discharge onus upon him to
prove execution of agreement to sell (Isar Chitthi) which was executed by
defendant. Therefore, it was a fit case where ruling in Prakash Chandra v.
Angadlal & ors reported in AIR 1979 SC 1241 was attracted and relief of
specific performance, considering the evidence on record led by the
plaintiff, could not have been negatived on imaginary ground that the
plaintiff was not ready and willing to perform his part of contract. The
object of granting relief of specific performance of contract is to protect a
transferee under contract from the consequences flowing from reluctance
on the part of defendant to abide by his promise. Although specific relief is
discretionary as observed by the Apex Court in Prakash Chandra’s case
(supra), the ordinary rule is that specific performance should be granted.
It ought to be denied only when equitable considerations point to its
refusal and the circumstances show that damages would constitute an
adequate relief.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 692 of 2006
Kishor son of Gopaldas Gupta,
versus
Ambadas son of Gangaprasad Bhagat,
Coram : A. P. Bhangale, J
Dated : 10th February 2014
Citation; 2015(7) ALLMR 428
Bombay High Court
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 692 of 2006
Appellant : Kishor son of Gopaldas Gupta, aged about
40 years, occupation : business, resident of
Bhaji Bazar, Sarafa, Amravati
versus
Respondent : Ambadas son of Gangaprasad Bhagat,
aged about 40 years, occ: business,
resident of Bhaji Bazar, Sarafa, Amravati
Mr Harshvardhan Dhumale, Advocate for appellant.
Respondent served on merit.
Coram : A. P. Bhangale, J
Dated : 10th February 2014
Oral Judgment
1. This second appeal was admitted on 16.4.2007 on the
following substantial question of law :
“Whether the reasons recorded by both the Courts for
holding that the plaintiff was not ready and willing to
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2
perform his part of contract are perverse and
unsustainable ?”
2. Suit for specific performance of contract was filed by appellant
(original plaintiff) bearing RCS No. 139 of 2001 before the Civil Judge, JD,
Amravati. According to plaintiff, he agreed to purchase open space with
super structure admeasuring 213.75 square feet out of Plot No. 179, Nazul
Sheet No. 92/1 situated at Takarkheda, Amravati. On 15.12.1997 token
money of Rs. 501/ was paid by plaintiff to defendant and then on
24.12.1997 plaintiff paid Rs. 4400/ to the defendant on which date
agreement for sale was executed. Total consideration was fixed at Rs.
16,000/ and the sale deed was to be obtained on or before 30.6.1998.
According to plaintiff, in addition to above, he had paid Rs. 2000/ to
defendant from time to time. Since defendant failed to execute sale deed,
plaintiff issued him notice on 22.12.2000 calling upon to remain present in
the Office of SubRegistrar concerned on 29.12.2001. Plaintiff remained
present in the office of SubRegistrar throughout office hours, but the
defendant did not turn up. In order to substantiate his presence, plaintiff
sworn in an affidavit on the stamp paper of Rs. 10/ on 29.12.2000.
3. Respondent (original defendant) by his Written statement
dated 8.8.2001 denied suit claim. He alleged handloan transaction to
claim that there was, therefore, no question of execution of sale deed and
that his signatures were obtained on blank stamp paper. According to
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3
defendant, he tried to repay amount of Rs. 4000/ taken by way of handloan,
but plaintiff refused to accept the amount. He prayed for dismissal of
suit.
4. In the trial Court, plaintiff entered into witness box and
deposed in support of suit claim. He gave evidence about agreement to
sell (exhibit 22) which contained recital indicating that the total
consideration was fixed at Rs. 16,000/ out of which earnest money of Rs.
4000/ was paid to defendant while plaintiff had agreed to pay remaining
consideration of Rs. 12,000/ before the SubRegistrar at the time of
execution of sale deed. He deposed that on 30.6.1998 defendant did not
turn up to execute sale deed and was saying that he could execute sale
deed any time. He further deposed that to the legal notice (exhibit 24),
defendant did not give any reply and did not appear on 29.12.2000 for the
purpose of execution of sale deed. He deposed that he sworn in affidavit
(exhibit 25) substantiating his presence. He lastly deposed that he was
ready and willing to obtain sale deed from defendant. In crossexamination,
plaintiff denied the suggestion that he had given Rs. 4000/
to defendant by way of handloan and that defendant’s signatures were
obtained on blank stamp paper. He denied that there was no agreement
for sale executed between the parties. Therefore, nothing damaging to the
case of plaintiff could be elicited in the course of crossexamination
regarding alleged unwillingness on the part of plaintiff to get the sale deed
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executed.
5. From the notice dated 22.12.2000 (exhibit 23) which was sent
by plaintiff through his Advocate, it was evident that plaintiff was ready
and willing to perform his part of contract. Nonreply to the said notice
(exhibit 23) ought to have weighed with the trial Court to infer default on
the part of defendant to avoid execution of sale deed, as promised.
Affidavit (exhibit 25) shows that plaintiff was present in the office of SubRegistrar
concerned on 29.12.2000. It is pertinent to note that defendant
did not venture to enter in the witness box to oppose the suit claim though
he had sought to defend the suit on the ground that plaintiff was not ready
and willing to get the sale deed executed from him and that it was a handloan
transaction. In the absence of any evidence on the part of defendant
in this regard and apathy on his part to give reply to the legal notice dated
22.12.2000, learned trial Court as also 1st appellate Court committed gross
error of law to nonsuit the plaintiff in his claim for specific performance
of contract which was proved as per exhibit 22. In a suit for specific
performance of contract which is a relief in equity, ordinary rule is that
specific performance ought to be granted. Refusing such relief is an
exception. In the present case, it appears from the evidence on record that
that the plaintiff had led ample evidence to discharge onus upon him to
prove execution of agreement to sell (Isar Chitthi) which was executed by
defendant. Therefore, it was a fit case where ruling in Prakash Chandra v.
Angadlal & ors reported in AIR 1979 SC 1241 was attracted and relief of
specific performance, considering the evidence on record led by the
plaintiff, could not have been negatived on imaginary ground that the
plaintiff was not ready and willing to perform his part of contract. The
object of granting relief of specific performance of contract is to protect a
transferee under contract from the consequences flowing from reluctance
on the part of defendant to abide by his promise. Although specific relief is
discretionary as observed by the Apex Court in Prakash Chandra’s case
(supra), the ordinary rule is that specific performance should be granted.
It ought to be denied only when equitable considerations point to its
refusal and the circumstances show that damages would constitute an
adequate relief.
6. In the present case, plaintiff examined himself and a person
who was witness to the earnest deed. Defendant did not enter witness
box and failed to lead evidence to controvert the case of plaintiff. In these
circumstances, the Courts below could not have recorded a finding that
plaintiff was not ready and willing to perform his part of contract. Plaintiff
had shown his readiness and willingness by insisting upon execution of
sale by attending the office of SubRegistrar on the given date i.e.
30.6.1998, but the defendant failed to attend the office of SubRegistrar.
Defendant also did not bother to give reply to the legal notice sent on
behalf of plaintiff whereby plaintiff had called upon defendant to execute
sale deed. Thus, there was ample evidence showing readiness and
willingness on the part of plaintiff to get the sale deed executed from
defendant pursuant to agreement for sale (exhibit 22). In the absence of
of evidence that time was made essence of contract, in the present case,
findings recorded against the plaintiff by both the Courts below, to say the
least, were perverse and unsustainable. Even in this Court, despite the fact
that defendant/respondent is duly served, he did not bother to come
forward to oppose the appeal. For all these reasons, instead of merely
making an order for refund of earnest money, learned trial Judge ought to
have granted relief of specific performance of contract, as prayed for by the
plaintiff. Hence, second appeal must be allowed. The substantial question
of law is answered in the affirmative.
7. In the result, Second Appeal is allowed. Impugned judgments
and orders are quashed and set aside. Plaintiff’s suit for specific
performance of contract (exhibit 22) is decreed with costs with direction to
the defendant to execute sale deed by accepting balance amount of Rs.
12,000/ within three months from the date of this order. If the defendant
fails to execute sale deed in favour of plaintiff on receiving balance
consideration within the stipulated period, plaintiff is free to obtain the
sale deed on behalf of defendant through trial Court on depositing balance
consideration amount there and on observing necessary formalities in that
behalf. Decree be drawn up accordingly.
A. P. BHANGALE, J
Print Page
performance of contract which is a relief in equity, ordinary rule is that
specific performance ought to be granted. Refusing such relief is an
exception. In the present case, it appears from the evidence on record that
that the plaintiff had led ample evidence to discharge onus upon him to
prove execution of agreement to sell (Isar Chitthi) which was executed by
defendant. Therefore, it was a fit case where ruling in Prakash Chandra v.
Angadlal & ors reported in AIR 1979 SC 1241 was attracted and relief of
specific performance, considering the evidence on record led by the
plaintiff, could not have been negatived on imaginary ground that the
plaintiff was not ready and willing to perform his part of contract. The
object of granting relief of specific performance of contract is to protect a
transferee under contract from the consequences flowing from reluctance
on the part of defendant to abide by his promise. Although specific relief is
discretionary as observed by the Apex Court in Prakash Chandra’s case
(supra), the ordinary rule is that specific performance should be granted.
It ought to be denied only when equitable considerations point to its
refusal and the circumstances show that damages would constitute an
adequate relief.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 692 of 2006
Kishor son of Gopaldas Gupta,
versus
Ambadas son of Gangaprasad Bhagat,
Coram : A. P. Bhangale, J
Dated : 10th February 2014
Citation; 2015(7) ALLMR 428
Bombay High Court
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 692 of 2006
Appellant : Kishor son of Gopaldas Gupta, aged about
40 years, occupation : business, resident of
Bhaji Bazar, Sarafa, Amravati
versus
Respondent : Ambadas son of Gangaprasad Bhagat,
aged about 40 years, occ: business,
resident of Bhaji Bazar, Sarafa, Amravati
Mr Harshvardhan Dhumale, Advocate for appellant.
Respondent served on merit.
Coram : A. P. Bhangale, J
Dated : 10th February 2014
Oral Judgment
1. This second appeal was admitted on 16.4.2007 on the
following substantial question of law :
“Whether the reasons recorded by both the Courts for
holding that the plaintiff was not ready and willing to
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2
perform his part of contract are perverse and
unsustainable ?”
2. Suit for specific performance of contract was filed by appellant
(original plaintiff) bearing RCS No. 139 of 2001 before the Civil Judge, JD,
Amravati. According to plaintiff, he agreed to purchase open space with
super structure admeasuring 213.75 square feet out of Plot No. 179, Nazul
Sheet No. 92/1 situated at Takarkheda, Amravati. On 15.12.1997 token
money of Rs. 501/ was paid by plaintiff to defendant and then on
24.12.1997 plaintiff paid Rs. 4400/ to the defendant on which date
agreement for sale was executed. Total consideration was fixed at Rs.
16,000/ and the sale deed was to be obtained on or before 30.6.1998.
According to plaintiff, in addition to above, he had paid Rs. 2000/ to
defendant from time to time. Since defendant failed to execute sale deed,
plaintiff issued him notice on 22.12.2000 calling upon to remain present in
the Office of SubRegistrar concerned on 29.12.2001. Plaintiff remained
present in the office of SubRegistrar throughout office hours, but the
defendant did not turn up. In order to substantiate his presence, plaintiff
sworn in an affidavit on the stamp paper of Rs. 10/ on 29.12.2000.
3. Respondent (original defendant) by his Written statement
dated 8.8.2001 denied suit claim. He alleged handloan transaction to
claim that there was, therefore, no question of execution of sale deed and
that his signatures were obtained on blank stamp paper. According to
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3
defendant, he tried to repay amount of Rs. 4000/ taken by way of handloan,
but plaintiff refused to accept the amount. He prayed for dismissal of
suit.
4. In the trial Court, plaintiff entered into witness box and
deposed in support of suit claim. He gave evidence about agreement to
sell (exhibit 22) which contained recital indicating that the total
consideration was fixed at Rs. 16,000/ out of which earnest money of Rs.
4000/ was paid to defendant while plaintiff had agreed to pay remaining
consideration of Rs. 12,000/ before the SubRegistrar at the time of
execution of sale deed. He deposed that on 30.6.1998 defendant did not
turn up to execute sale deed and was saying that he could execute sale
deed any time. He further deposed that to the legal notice (exhibit 24),
defendant did not give any reply and did not appear on 29.12.2000 for the
purpose of execution of sale deed. He deposed that he sworn in affidavit
(exhibit 25) substantiating his presence. He lastly deposed that he was
ready and willing to obtain sale deed from defendant. In crossexamination,
plaintiff denied the suggestion that he had given Rs. 4000/
to defendant by way of handloan and that defendant’s signatures were
obtained on blank stamp paper. He denied that there was no agreement
for sale executed between the parties. Therefore, nothing damaging to the
case of plaintiff could be elicited in the course of crossexamination
regarding alleged unwillingness on the part of plaintiff to get the sale deed
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4
executed.
5. From the notice dated 22.12.2000 (exhibit 23) which was sent
by plaintiff through his Advocate, it was evident that plaintiff was ready
and willing to perform his part of contract. Nonreply to the said notice
(exhibit 23) ought to have weighed with the trial Court to infer default on
the part of defendant to avoid execution of sale deed, as promised.
Affidavit (exhibit 25) shows that plaintiff was present in the office of SubRegistrar
concerned on 29.12.2000. It is pertinent to note that defendant
did not venture to enter in the witness box to oppose the suit claim though
he had sought to defend the suit on the ground that plaintiff was not ready
and willing to get the sale deed executed from him and that it was a handloan
transaction. In the absence of any evidence on the part of defendant
in this regard and apathy on his part to give reply to the legal notice dated
22.12.2000, learned trial Court as also 1st appellate Court committed gross
error of law to nonsuit the plaintiff in his claim for specific performance
of contract which was proved as per exhibit 22. In a suit for specific
performance of contract which is a relief in equity, ordinary rule is that
specific performance ought to be granted. Refusing such relief is an
exception. In the present case, it appears from the evidence on record that
that the plaintiff had led ample evidence to discharge onus upon him to
prove execution of agreement to sell (Isar Chitthi) which was executed by
defendant. Therefore, it was a fit case where ruling in Prakash Chandra v.
Angadlal & ors reported in AIR 1979 SC 1241 was attracted and relief of
specific performance, considering the evidence on record led by the
plaintiff, could not have been negatived on imaginary ground that the
plaintiff was not ready and willing to perform his part of contract. The
object of granting relief of specific performance of contract is to protect a
transferee under contract from the consequences flowing from reluctance
on the part of defendant to abide by his promise. Although specific relief is
discretionary as observed by the Apex Court in Prakash Chandra’s case
(supra), the ordinary rule is that specific performance should be granted.
It ought to be denied only when equitable considerations point to its
refusal and the circumstances show that damages would constitute an
adequate relief.
6. In the present case, plaintiff examined himself and a person
who was witness to the earnest deed. Defendant did not enter witness
box and failed to lead evidence to controvert the case of plaintiff. In these
circumstances, the Courts below could not have recorded a finding that
plaintiff was not ready and willing to perform his part of contract. Plaintiff
had shown his readiness and willingness by insisting upon execution of
sale by attending the office of SubRegistrar on the given date i.e.
30.6.1998, but the defendant failed to attend the office of SubRegistrar.
Defendant also did not bother to give reply to the legal notice sent on
behalf of plaintiff whereby plaintiff had called upon defendant to execute
sale deed. Thus, there was ample evidence showing readiness and
willingness on the part of plaintiff to get the sale deed executed from
defendant pursuant to agreement for sale (exhibit 22). In the absence of
of evidence that time was made essence of contract, in the present case,
findings recorded against the plaintiff by both the Courts below, to say the
least, were perverse and unsustainable. Even in this Court, despite the fact
that defendant/respondent is duly served, he did not bother to come
forward to oppose the appeal. For all these reasons, instead of merely
making an order for refund of earnest money, learned trial Judge ought to
have granted relief of specific performance of contract, as prayed for by the
plaintiff. Hence, second appeal must be allowed. The substantial question
of law is answered in the affirmative.
7. In the result, Second Appeal is allowed. Impugned judgments
and orders are quashed and set aside. Plaintiff’s suit for specific
performance of contract (exhibit 22) is decreed with costs with direction to
the defendant to execute sale deed by accepting balance amount of Rs.
12,000/ within three months from the date of this order. If the defendant
fails to execute sale deed in favour of plaintiff on receiving balance
consideration within the stipulated period, plaintiff is free to obtain the
sale deed on behalf of defendant through trial Court on depositing balance
consideration amount there and on observing necessary formalities in that
behalf. Decree be drawn up accordingly.
A. P. BHANGALE, J
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