Learned counsel
for the appellant further argued that in the case of sale of
immovable property there is no presumption as to time being the
essence of the contract. Even if it is not the essence of the
contract, the court may infer that it is to be performed in a
reasonable time if the conditions are: (i) from the express terms
of the contract; (ii) from the nature of the property; and (iii) from
the surrounding circumstances, for example: the object of
making the contract and for that reliance has been placed upon
(1993) 1 Supreme Court Cases 519 Chand Rani (Smt.)
Dead) by Lrs… Appellants versus Kamal Rani (Smt.) (Dead)
by Lrs… Respondents.
The agreement to sale (Ext. 3)
contains the terms which have been agreed upon that the
transaction of sale should be completed within six months from
the date of execution of the agreement i.e. from 28.10.1988 till
27.04.1989. In last paragraph there is term that if the vendee
fails to get the sale deed registered within the time then, amount
of only Rs. 25,000/- will be forfeited and that cannot be realized
from executant. Further it is mentioned that the land to be sold
would be measured and the payment of the price would be finally
calculated accordingly. In the case of Smt. Indira Kaur and
others (supra) and also in the case of Chand Rani (Supra) it
has been held that the law is well settled that in transaction of
sale of immovable properties time is not the essence of the
contract. The Apex Court in the case of Balasaheb Dayandeo
Naik (dead) through LRS & Ors. vs. Appasaheb Dattatraya
Pawar reported in (2008) 4 SCC Page 464 in paragraph 10,
11, 12 and 14 held that the time was not the essence of the
contract. Here also the land going to be sold is immovable
property and agricultural land and as such time was not the
essence of the contract. There is nothing on the record on behalf
of defendants to show that the defendants got measured the land
rather the plaintiff after sending the Ext. 1/A (legal notice)
requested the defendants to get the land measured and
demarcated and to get the sale deed executed. From the oral
evidences adduced on behalf of the parties also it reveals that the
time was not the essence of the contract and it was never agreed
that the entire earnest money will be forfeited rather by way of
cost only Rs. 25,000/- was to be forfeited. No party can be
allowed to go beyond the express term contained in the
agreement to sale. Accordingly, it is held that the time was not
the essence of the contract.
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.42 of 2006
Most.Sita Devi V Mahal Sahkari Grih Nirman Samiti Ltd. Patna,
CORAM: HONOURABLE MR. JUSTICE JITENDRA MOHAN
SHARMA
Citation:AIR 2016 Patna 191
Date: 06-09-2016
The instant appeal has been preferred against the
judgment and decree dated 24.12.2005 passed by Sri Nagendra Patna High Court FA No.42 of 2006 dt.06-09-2016 2
Prasad Tripathi, the then Subordinate Judge III, Danapur decree
sealed and signed on 06.01.2006 in Title Suit No. 43 of 1990
whereby and whereunder the suit filed by plaintiff/respondent was
decreed on contest with costs. The defendants were directed to
execute the sale deed in favour of plaintiff on receipt of balance of
consideration money from the plaintiff within three months from
the date of judgment, failing which the same be executed through
the process of the court on depositing the balance consideration
money by the plaintiff. The defendants are the appellants here.
2. The plaintiff has filed the suit for a decree of
specific performance of contract and in alternative decree for
realization of Rs. 65,000/- with interest at the rate of 12 per cent.
3. Briefly stated, the case of the plaintiff is that the
original defendants Rupa Rai, Arbind Rai along with one Sanjay
Kumar (deceased) being in need of money for business declared
for selling the land mentioned in Schedule I of the plaint and
ultimately the matter was finalized in between the defendants and
plaintiff through its Secretary Panchi Lal Rai at the rate of Rs.
50,000/- per kattha for area of 16 decimal and accordingly, after
receipt of advance of Rs. 45,000/- Rupa Rai, Arbind Rai and
Sanjay Kumar executed the deed of agreement for sale dated
28.10.1988 with promise to execute necessary sale deed with
respect to land mentioned in Schedule I of the plaint in favour of
plaintiff within six months till 27.04.1989 on receiving the balance
consideration money from the plaintiff, failing which the plaintiff Patna High Court FA No.42 of 2006 dt.06-09-2016 3
would be entitled to get the sale deed executed from the
defendants through the process of the court. It was also agreed
by the plaintiff that if the plaintiff fails to get the sale deed
executed after paying the balance consideration money within the
stipulated period the earnest money would be forfeited. The deed
of agreement for sale executed on 28.10.1988 was handed over
to the Secretary of the plaintiff. The plaintiff being ready with
consideration money always contacted to the defendants and
late Sanjay Kumar requesting them to execute the sale deed but
they evaded the matter on one ground or the other and in the
meantime Arbind Prasad showing urgency demanded Rs. 20,000/-
again and the plaintiff through its Secretary paid a sum of Rs.
20,000/- to said Arbind Prasad on 29.11.1988 and in proof of the
same Arbind Prasad made endorsement to this effect at the back
of first page of deed of agreement for sale and assured to execute
the sale deed. The plaintiff contacted to the defendants several
times and requested to execute the sale deed on receipt of
balance consideration amount but the defendants evaded the
matter then finding no alternative the plaintiff sent a legal notice
dated 24.04.1989 to the defendants through its Advocate Shri
Shiv Nath Sharma which the defendants knowingly and
intentionally did not receive and bringing the postal peon in his
collusion got the notice returned to the learned Advocate of the
plaintiff by making collusive endorsement. The defendants with
intention to grab the advance money of Rs. 65,000/- sent a legal Patna High Court FA No.42 of 2006 dt.06-09-2016 4
notice dated 27.04.1989 through their Advocate Sri Rajendra
Prasad mentioning false and wrong facts to which the plaintiffs
sent reply dated 02.05.1989 controverting all the facts of the legal
notice of the defendants stating that the plaintiff was or are
always ready to perform its part of contract as per agreement and
it was the defendants who were and are not ready to perform
their part of contract. Thereafter, again the Secretary of the
plaintiff met to the defendants in the month of December 1989
with balance consideration amount and requested them to execute
the sale deed, then the defendants replied that due to some
mishappening in their family they are unable to execute the sale
deed and they would execute the sale deed in March,1990. As per
assurance the plaintiff through its secretary approached several
times to the defendants and requested for executing the sale deed
but ultimately on 02.04.1990 the defendants flatly refused to
execute the sale deed with respect to the land mentioned in
Schedule I of the plaint and then this suit was filed.
4. The defendants by filing their written statement
contested the suit, they admitted regarding execution of
agreement to sale and receiving payment of Rs. 45,000/- but
refused regarding receiving payment of Rs. 20,000/- on
29.11.1988 by Arbind Prasad and that Arbind Prasad never made
any endorsement on the back of the deed of the agreement and
the same is forged and fabricated. The plaintiff after entering into
contract was never ready to perform his part of contract and the
time was the essence of the contract. Therefore, the defendants
are not under obligation to perform the terms of the contract. No
notice has ever been served upon the defendants by the plaintiff.
It is false to say that the defendants brought postal peon in their
collusion and got manipulated the service report. The defendants
sent legal notice through their Advocate Shri Rajesh Prasad with
correct statements of the facts and reply notice of the plaintiff was
of no consequence as the same contained false statements. The
plaintiff was in fact not ready with money to perform their part of
contract within stipulated period and consequently amount paid
as advance stood forfeited. The plaintiff was never ready to
perform its part of contract as per agreement whereas the
defendants were or are always ready to perform their part of
contract as per agreement. According to the defendants, on
account of unwillingness on the part of the plaintiff its aforesaid
earnest money was forfeited and the suit is not maintainable.
5. On the basis of the pleadings of the parties,
following issues were settled on re-cast by the learned trial judge:
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff valid cause of action for the suit ?
(iii) Whether one of the executant of Bai-beyana deed
namely Arbind Prasad took Rs. 20,000/- out of total consideration
money from the plaintiff on 29.11.1988 and made endorsement at
the back of Bai-beyana deed dated 28.10.1988 ?
(iv) Is the plaintiff entitled for a decree as sought for ?Patna High Court FA No.42 of 2006 dt.06-09-2016 6
(v) To what other relief or reliefs the plaintiff is
entitled?.
6. Learned Sub-Judge decided all the issues in favour
of the plaintiff/respondent holding that the plaintiff was always
ready and willing to perform the terms of contract up till now and
as such the plaintiff is entitled for the relief as sought for and
accordingly, decreed the suit.
7. The defendants being aggrieved and dissatisfied
with the judgment and decree have preferred this appeal
challenging the maintainability of the same on the ground that the
findings of the learned Sub-Judge on the issues are wrong, he has
adopted different standards in weighing the evidence of PWs from
that of DWs, he has ignored the legal evidence available on the
record and has based his findings on conjectures and surmises.
There was no occasion to give Rs. 20,000/- again to Arbind Prasad
and it is out and out a concocted story. Every thing was finalized
by Rupa Rai being the guardian and father of Arbind Prasad and
Sanjay Kumar and, accordingly, a deed of agreement to sale was
executed. In deed of agreement to sale, which is an important
document for consideration, Exhibit 3, it was agreed that during
the stipulated period i.e. till 27.04.1989 the plaintiff will ask the
defendants to execute the sale deed in different names after
paying different amounts and if the defendants will fail in
executing the sale deed then, the plaintiff has got right to get the
sale deed executed through the process of the court and if the Patna High Court FA No.42 of 2006 dt.06-09-2016 7
plaintiff fails to purchase the property after paying the balance
consideration amount then, the amount of Rs. 25,000/- will be
forfeited as cost and damages. The learned Sub-Judge has
wrongly relied upon oral evidence and documentary evidence of
plaintiff and wrongly held that one of the executant of Bai-beyana
deed namely, Arbind Prasad, took Rs. 20,000/- out of total
consideration money from the plaintiff on 29.11.1988 and made
endorsement at the back of Bai-beyana deed dated 28.10.1988.
The witnesses examined on behalf of plaintiff are not consistent
on that point. PW 5 Anup Rai has come to say that amount of Rs.
20,000/- was given later on, but, during cross-examination, in
paragraph 11, he has stated that amount of Rs. 20,000/- was
given to Rupa Rai and he cannot say the name of the person
present at that time. In paragraph 12 this witness has stated that
he cannot say the name of the owner of hotel where the amount
of Rs.20,000/-was paid. PW 8 Jagdish Prasad Gupta has also come
to say that on 29.11.1988 amount of Rs. 20,000/- was taken by
Arbind Rai and he made endorsement at the back of the first page
of the deed of Bai-beyana. He is the president of Mahal Sahakari
Grih Nirman Samiti Limited, Patna and he is an interested person
and as such his evidence appears not reliable. During crossexamination
in paragraph 24 this witness has stated that amount
of Rs. 20,000/- was given in presence of the witnesses of deed of
Bai-beyana to Arbind Kumar but they have not signed as a
witness on that date. PW 9 is plaintiff no. 2 himself and he has Patna High Court FA No.42 of 2006 dt.06-09-2016 8
supported his case. In paragraph 43 he has stated that amount of
Rs. 20,000/- was given to Arbind Prasad at his house and at that
time his father was also present and further Anup Rai was also
present whereas PW 8 in paragraph 14 has stated that he and
Panchi Lal Rai have only gone to the house of Rupa Rai and
amount of Rs. 20,000/- was given to Arbind Kumar. He cannot
say as to whether Rupa Rai was present in the house or not, so
the evidence of PWs are inconsistent on that point. PW 11 is a
hand writing expert who has examined the disputed signature and
the admitted signature of Arbind Prasad and submitted his report
unscientifically and his evidence is also not reliable. No notice was
ever received by the defendants alleged to be sent by the plaintiff
and Ext. 1/A dated 24.04.1989 is a manufactured document.
Further in the said notice it is alleged that the defendants are not
getting the land measured and demarcated and their gotiya are
saying that defendants have got no title and possession over the
aforesaid land and as such on this ground also the evidence of
PWs is not reliable and is fit to be rejected.
8. On the other hand the evidence of DWs are
consistent and reliable. DW 11 Saiyad Md. Jamil Ahmad, hand
writing expert has specifically stated that the disputed signature of
Arbind Prasad dos not tally with admitted signature of Arbind
Prasad and his evidence is also reliable. Ext. C the expert report is
scientific. Ext. B is the legal notice which after expiry of time was
sent to the plaintiff through learned counsel which they receivedPatna High Court FA No.42 of 2006 dt.06-09-2016 9
and gave reply which is Ext. 1. The evidence of DW 7 Arbind
Prasad is consistent with other evidence and is reliable one. Other
witnesses have also supported the case of the defendants and as
such the reliance placed by learned Subordinate Judge on the
evidence of plaintiff is perfunctory and due to wrong assumption
of facts and evidence. The learned Subordinate Judge has given
wrong findings, resulting, the judgment and decree passed by
learned Subordinate Judge is fit to be set aside. Learned counsel
for the appellant further argued that in the case of sale of
immovable property there is no presumption as to time being the
essence of the contract. Even if it is not the essence of the
contract, the court may infer that it is to be performed in a
reasonable time if the conditions are: (i) from the express terms
of the contract; (ii) from the nature of the property; and (iii) from
the surrounding circumstances, for example: the object of
making the contract and for that reliance has been placed upon
(1993) 1 Supreme Court Cases 519 Chand Rani (Smt.)
Dead) by Lrs… Appellants versus Kamal Rani (Smt.) (Dead)
by Lrs… Respondents. In the present case also there is express
term of the contract that within the stipulated period the sale deed
has to be executed after paying the balance consideration
amount, failing which the earnest money will be forfeited. The
property is agricultural land and was fit for construction of house.
The object of making the contract was for doing business and due
to non-payment of balance consideration money, as the plaintiff
failed to search different purchasers, the defendants did not start
the business and as such the object was frustrated and on this
ground the suit of the plaintiff was fit to be dismissed.
9. On the other hand, on behalf of plaintiffrespondent,
it has been argued that the plaintiff was always
ready to pay the balance consideration money and to get the sale
deed executed. Amount of Rs. 20,000/- was paid to Arbind Prasad
on 29.11.1988 and he has made endorsement and has signed in
proof thereof on the back of page one of the deed of Bai-beyana
which has been marked as Ext. 3/A. The signature of Arbind
Prasad at the time of execution of deed of Bai-beyana and his
disputed signature were examined by the expert. PW 11, who is a
retired hand writing expert, has found both signatures as same.
PW 12 is a photographer who has taken photograph of both the
signatures of Arbind Prasad in presence of both the learned
counsels and Shirestedar. He has proved the negatives and
enlarged photo in the court. The witnesses examined on behalf of
plaintiffs are reliable and trust worthy. It is well proved that on
29.11.1988 Arbind Prasad further took Rs. 20,000/-. It is also an
admitted fact that Sanjay Kumar died and thereafter, the
defendants took some time on that ground but, later on, refused
having dishonest intention to execute the sale deed and then, the
suit was filed. Ext. 1/A is the legal notice, dated 24.04.1989, sent
by Sri Sidhnath Sharma, Advocate Bar Association, Danapur, on
behalf of plaintiff to Sri Rupa Rai and others and by the said notice Patna High Court FA No.42 of 2006 dt.06-09-2016 11
also it reveals that the plaintiff was ready to get the sale deed
executed after measuring the land and demarcating the same but
the said notice was returned back vide Ext. 4 by bringing the
postal peon in collusion and making false endorsement that by
that name no such person is in the locality. Further from Ext. 1,
which is a reply notice, also it reveals that the plaintiff was ready
with the money and has requested to receive the money and
asked the defendants to execute the sale deed and deliver the
possession of land to the plaintiff, that reply noticed is dated
02.05.1989. Issue no. iii being most important was decided by the
learned Subordinate Judge at first and has rightly held that Arbind
Prasad took Rs. 20,000/- on 29.11.1988 after making
endorsement and signature at the back of Bai-beyana deed dated
28.10.1988. The defendants having dishonest intention, only with
a view to grab the advance money and further to take more
money from other persons, failed to perform their part of contract.
The learned Subordinate Judge has rightly decided all the issues in
favour of the plaintiffs and against the defendants and the suit
was rightly decreed. Learned counsel has placed reliance upon a
judgment reported in (1988) 2 Supreme Court Cases page
488 in the case of Smt. Indira Kaur and Others.. Appellants
Versus Sheol Lal kapoor.. Respondents. In the present case,
the plaintiff was always ready and willing to perform his part of
contract and as such the plaintiff’s suit for specific performance
has rightly been decreed. It has been argued that the law is well Patna High Court FA No.42 of 2006 dt.06-09-2016 12
settled that in transactions or sale of immovable property time is
not the essence of the contract. The facts of the case of Chand
Rani (Supra) is quit on different footing. There, the property was
house in urban area. In that case the plaintiff was not ready and
willing to perform his part of contract whereas in the present case,
the plaintiff was always ready to pay the balance consideration
amount and to get the sale deed executed. In Ext. 3 rate was
fixed Rs. 50,000/- per kattha as per measurement but the
defendants never came forward to get the land measured but in
spite of that the plaintiffs were always ready with consideration
amount to pay the same to the defendants and to get the sale
deed executed. According to the learned counsel for the
respondents, the judgment and decree passed by the learned
Subordinate Judge is quite legal, proper and justified and there is
no need of any interference of this Court.
10. On the basis of rival contentions of the parties,
the points for consideration before this Court in this appeal are as
follows:
(i) Whether the time was the essence of the contract ?
(ii) Whether Arbind Prasad one of the executant of
agreement to sale took Rs. 20,000/- out of total consideration
money from plaintiff on 29.11.1988 after making endorsement
and signature at the back of Bai-beyana dated 28.10.1988 ?
(iii) Whether the plaintiff was ready and willing to
perform his part of contract and whether the suit has been rightly Patna High Court FA No.42 of 2006 dt.06-09-2016 13
decreed ?
11. Point No. i :- The agreement to sale (Ext. 3)
contains the terms which have been agreed upon that the
transaction of sale should be completed within six months from
the date of execution of the agreement i.e. from 28.10.1988 till
27.04.1989. In last paragraph there is term that if the vendee
fails to get the sale deed registered within the time then, amount
of only Rs. 25,000/- will be forfeited and that cannot be realized
from executant. Further it is mentioned that the land to be sold
would be measured and the payment of the price would be finally
calculated accordingly. In the case of Smt. Indira Kaur and
others (supra) and also in the case of Chand Rani (Supra) it
has been held that the law is well settled that in transaction of
sale of immovable properties time is not the essence of the
contract. The Apex Court in the case of Balasaheb Dayandeo
Naik (dead) through LRS & Ors. vs. Appasaheb Dattatraya
Pawar reported in (2008) 4 SCC Page 464 in paragraph 10,
11, 12 and 14 held that the time was not the essence of the
contract. Here also the land going to be sold is immovable
property and agricultural land and as such time was not the
essence of the contract. There is nothing on the record on behalf
of defendants to show that the defendants got measured the land
rather the plaintiff after sending the Ext. 1/A (legal notice)
requested the defendants to get the land measured and
demarcated and to get the sale deed executed. From the oral
evidences adduced on behalf of the parties also it reveals that the
time was not the essence of the contract and it was never agreed
that the entire earnest money will be forfeited rather by way of
cost only Rs. 25,000/- was to be forfeited. No party can be
allowed to go beyond the express term contained in the
agreement to sale. Accordingly, it is held that the time was not
the essence of the contract. In the result, this point is decided
against the appellants and in favour of the respondents.
12. Point No. ii:- The case of the plaintiff in this
regard is that besides Rs. 45,000/-, he further paid Rs. 20,000/-
through its secretary Panchi Lal Rai to the defendant Arbind
Prasad on 29.11.1988 and in token of the proof of the same said
Arbind Prasad made an endorsement to this effect at the back of
first page of the deed of agreement for sale which is Ext. 3. The
signature and endorsement of Arbind Prasad on the back of Ext. 3
has been marked as Ext. 3/A.
13. On the other hand the defendants denied the said
payment stating that Arbind Prasad never made any signature or
endorsement on the back of first page of the agreement to sale
and that the same is forged and fabricated one. The plaintiff to
prove this fact got examined the signature of Arbind Prasad in Ext.
3A with the signature of Arbind Prasad on Ext. 3 by PW 11 Keshaw
Prasad hand writing expert by sending photographs of the same
and photos were taken by PW 12 Chunni Lal. Keshaw Prasad PW
11 has submitted his report which is Ext. 5 and further in his Patna High Court FA No.42 of 2006 dt.06-09-2016 15
evidence he has stated that signature of Arbind Prasad on Ext. 3
which is an admitted signature and signature of Arbind Prasad on
Ext. 3/A which is disputed signature is of same person and similar.
Against that the defendant has got examined those signatures by
Saiyad Md. Jamil Ahmad DW 11 who has submitted his report Ext.
C and has stated in his evidence that the signature of Arbind
Prasad on Ext. 3 and disputed signature on Ext. 3/A are not
similar and does not tally. PW 5 Anup Rai who is also one of the
witness to Ext. 3 has stated in his evidence that after execution of
Bai-beyana deed further Rs. 20,000/- was paid by the plaintiff and
Arbind Prasad made endorsement at the Bai-beyana deed in his
presence. During cross-examination he is unable to give the
specific date of payment and further he cannot say the names of
the persons present at that time. He has further stated that he
cannot give name of the owner of the hotel where the payment
was made. PW 8 Jagdish Prasad Gupta, the President of Mahal Cooperative
Society has stated in his examination-in-chief that on
29.11.1988 Arbind Prasad received Rs. 20,000/- from Panchi Lal
Rai and made an endorsement at the back page of Bai-beyana
deed. This witness has been cross-examined but during crossexamination
also he has stated that Arbind Prasad received Rs.
20,000/- on 29.11.1988. In paragraph 14 he has further stated
that Arbind Kumar received Rs. 20,000/- on 29.11.1988 in
presence of the witness of Bai-beyana deed. This evidence of this
witness is corroborated by the evidence of PW 5 who is a witness Patna High Court FA No.42 of 2006 dt.06-09-2016 16
of the deed of Bai-beyana. PW 9 Panchi Lal Rai has stated that on
29.11.1988 he went to the house of Rupa Rai and met to Arbind
Prasad, he requested to the defendants for execution of sale deed
but Arbind Prasad shows his inability to execute the sale deed and
demanded Rs. 20,000/- from him, then, he paid Rs.20,000/- to
Arbind Prasad and thereafter, Arbind Prasad made endorsement
regarding the same at the back of the first page of Bai-beyana
deed and he has proved the signature and endorsement as Ext.
3/A. During cross-examination nothing has come against the
plaintiff rather this fact has been corroborated by the evidence by
those two witnesses during cross-examination. On the other hand,
on behalf of defendants, DW 5 Premdhar Rai has stated that he
along with Arbind Prasad went to Chapra on 29.11.1988 and on
29.11.1988 Arbind Prasad was not present in Danapur but in this
regard no document has been produced by the defendants. PW 7
Arbind Prasad has denied in his evidence about receiving of Rs.
20,000/- from Panchi Lal Rai on 29.11.1988 and further denied
that he has not made any endorsement on the back of first page
of Bai-beyana deed. He has further stated that this endorsement
at the back of first page of Bai-beyana deed and signature is
forged. Arbind Prasad in his evidence has not stated a single word
that on 29.11.1988 he was not present in Danapur and he went to
Chapra with Premdhar Rai DW 5 and it goes to show that the
evidence of DW 5 is not reliable and has not been corroborated.
Arbind Prasad has been cross-examined and during his cross-Patna High Court FA No.42 of 2006 dt.06-09-2016 17
examination he has stated that I will not examine his admitted
and disputed signature by any expert and this goes to show his
suspicious and shaky minds. DW 8 Rupa Rai has also denied about
receiving of Rs.20,000/- by Arbind Prasad.
14. After careful consideration of the evidences and
pleadings of both the parties in this regard, it is manifest that the
plaintiff has succeeded in proving that on 29.11.1988 Arbind
Prasad received Rs. 20,000/- from Panchi Lal Rai and made
endorsement at the back of first page of deed of agreement to
sale dated 28.10.1988. From perusal of expert report Ext. 5 and
Ext. C it reveals that both are contradictory to each other. Learned
Subordinate Judge in his finding has stated that Ext. 5 is more
scientific than Ext. C and I am also of the opinion that Ext. 5 is
based on scientific data and is more reasonable and reliable than
Ext. C. On the record there are signatures of Arbind Prasad on the
written statement and Vakalatnama also and from necked eyes
also it reveals that the signature of Arbind Prasad on Ext. 3/A is
the similar to those signatures on Ext. 3 and further as on written
statement and Vakalatnama. Learned Subordinate Judge after
careful consideration and discussion has rightly held that on
29.11.1988 Arbind Prasad took Rs. 20,000/- from Panchi Lal Rai,
Secretary of plaintiff no. 1 and made an endorsement at the back
of first page of agreement to sale dated 28.10.1988. It is well
settled law that where there are two experts, the court is expert
of the all experts and the learned Subordinate Judge has rightly Patna High Court FA No.42 of 2006 dt.06-09-2016 18
held that Ext.5 is more scientific than Ext. C. In the result, this
point is decided in favour of the respondents and against the
appellant.
15. Point No. iii :- In support of the case the
plaintiff has examined altogether 12 witnesses. PW 1 Uma Nath
Prasad is a formal witness, PW 2 Surendra Prasad is also a formal
witness and proved Ext. 1, PW 3 Santosh Kumar Jaiswal is also a
formal witness and has proved his signature on deed of
agreement to sale as Ext. 2. PW 4 Pradeep Kumar is the deed
writer of the deed of agreement to sale, he has proved the same
as Ext. 3. PW 5 Anup Rai is also one of the witness of agreement
to sale and he has stated that at the time of agreement to sale
amount of Rs. 45,000/- was paid and later on Rs. 20,000/- was
paid. He has further stated that 5 Katthas of land was agreed to
be sold at the rate of Rs. 50,000/- per Kattha and after getting
the contents read over, Rupa Rai gave thumb impression over the
same and he has signed on the deed of agreement to sale as per
the dictation of Rupa Rai. PW 6 Devendra Singh is a formal
witness and has proved envelop by which legal notice Ext. 1/A
was sent and was returned back. PW 7 Gobardhan Rai has come
to say that deed of agreement to sale was executed and Panchi
Lal Rai paid Rs. 45,000/- to Rupra Rai. PW 8 Jagdish Prasad
Gupta is the president of Mahal Co-operative Society. He has fully
supported the case of the plaintiff and has further stated that as
per the terms of deed of agreement, we were always ready to get Patna High Court FA No.42 of 2006 dt.06-09-2016 19
the sale deed executed after paying the balance consideration
amount but the defendants always evaded the matter. He has also
stated that legal notice was sent and when the defendants did not
execute the sale deed then, the suit was brought. In paragraph 15
he has further stated that today also they are ready to pay the
balance consideration amount and to get the sale deed executed.
From the evidence of this witness, it reveals that the plaintiff was
always ready to perform his part of contract and to get the sale
deed executed after paying the balance consideration amount. PW
9 is the plaintiff no. 2 himself. He is the Secretary of Mahal
Sahkari Grih Nirman Samiti. He has fully supported his case as
made out in the plaint. In paragraph 14 of his evidence he has
stated that after execution of deed of agreement to sale he was
always ready with balance consideration amount and to get the
sale deed executed and on 29.11.1988 he went at the house of
Rupa Rai where Arbind Kumar met and when he told him to
execute the sale deed, he demanded Rs. 20,000/-, which was paid
and he made an endorsement accordingly, on the back of page 1
of the deed of agreement to sale. In paragraph 16 he has further
stated that he went at the house of Rupa Rai after 29.11.1988
also and requested him to execute the sale deed but he evaded
the matter. In paragraph 17 he has stated that he requested him
to get the land measured but he did not get the land measured.
In paragraph 18 he has stated that in December, 1989 also he
went at the house of Rupa Rai and then, he told that his son has
died and as such requested to come in the year 1990. In the
month of April, 1990 also he went at the house of Rupa Rai to pay
the balance consideration amount and to get the sale deed
executed but he refused. Earlier also he has sent legal notice on
24.04.1989 and further he has given reply notice also on
02.05.1989. This witness has been cross-examined at length but
nothing has come to discredit his testimony. PW 10 is also a
formal witness. He has proved the legal notice as Ext. 1/A. PW 11
is retired hand writing expert and PW 12 is the photographer.
Besides oral evidences, documentary evidences are: Ext. 1 is
reply of the legal notice, Ext. 1/A is legal notice, Ext. 2 is
signature on the deed of agreement to sale, Ext. 3 is deed of
agreement to sale, Ext. 4 is endorsement on envelope, Ext. 3/A is
the disputed signature of Arbind Prasad on Ext. 3. From Ext. 1/A
and Ext. 1 it reveal that the plaintiff was always ready to pay the
balance consideration amount to the defendants and to get the
sale deed executed. The plaintiff was always willing to perform his
part of contract.
16. On the other hand on behalf of defendants DW 1
Krishna Prasad is a formal witness, he has proved the signature of
Rupa Rai and Arbind Prasad on written statement as Ext. A and
A/1. DW 2 Gyani Rai has come to say that Rupa Rai was trying to
start business of fodder cutting machine, flour and oil machine
and for that he talked with Panchi Lal Rai to sale the land. Rupa
Rai took land from Uma Rai on rent and gave advance of
Rs.10,000/- and further Rupa Rai used to pay rent at the rate of
Rs. 600/- per month but due to shortage of money business was
not started. During cross-examination this witness has become
incompetent. DW 3 Rajeshwar Prasad has also come to say that
Rupa Rai gave advance of Rs. 10,000/- to Uma Rai and took land
to fix Fodder Cutting Machine etc. but due to shortage of fund the
mill was not started and Rupa Rai suffered loss. During crossexamination
he has come to say that first of all he is saying this
matter in the court and as per advice of Rupa Rai he has deposed.
He has become incompetent during cross-examination. DW 4
Mithilesh Kumar Mishra is a formal witness. He has come to say
that on 02.05.1989 he has gone to the house of Rupa Rai and on
that date no peon has come to deliver a letter at the house of
Rupa Rai. During cross-examination he cannot say as to when he
has gone to the house of other and he has not noted down the
same. He has not stated to anyone that on 02.05.1989 that he
has gone to the house of Rupa Rai and there is no other witness.
DW 5 Premdhar Rai has come to say that on 29.11.1988 Arbind
Prasad was at Chapra with him but Arbind Prasad has not stated
like that and as such this witness is not reliable. DW 6 Mirtyunjay
Kumar Azad has come to say that he has met with Panchi Lal Rai
with Rupa Rai in March, 1988 near Bus-stand, Danapur and both
talked regarding execution of sale deed but Panchi Lal Rai took
time of one month to pay the balance consideration amount and
to get the sale deed executed. Rupa Rai again demanded money
for doing business but Panchi Lal Rai did not speak anything and
then, Rupa Rai told him that earnest money will be forfeited.
During cross-examination he has stated that Rupa Rai is his uncle,
further he has become incompetent. He has stated that earnest
money was not paid in his presence and he cannot say the name
of witnesses, identifier and deed writer of the deed of agreement
to sale. DW 7 is Arbind Prasad himself one of the defendants. He
has stated that within six months sale deed was to be executed
and time was till 27.04.1989 and as within time sale deed was not
executed and as such the earnest money was forfeited. He has
accepted the payment of Rs. 45,000/- as an advance but denied
regarding payment of Rs. 20,000/-. He has stated that for doing
business of fodder cutting machine, the land was going to be sold
but due to shortage of fund business was not started. After the
deed of agreement to sale was prepared, his father went to Panchi
Lal Rai and demanded money but he always evaded. He has also
stated to Panchi Lal Rai to pay the balance consideration amount
and get the sale deed executed but Panchi Lal Rai evaded the
matter. His father has demanded some money for business but
Panchi Lal Rai told him that at present he has got no money and
then, legal notice was sent to him and in spite of receipt of legal
notice Panchi Lal Rai never came to his father. This witness has
fully supported the case as made out in the written statement and
he has further stated that for drafting written statement he went
to an Advocate whose name is some Chaudhary and he did not
identify that Advocate. He cannot say as to what was written in
the written statement. Before filing written statement, no notice
sent by plaintiff was received and Panchi Lal Rai did not reply to
his notice which appears incorrect as vide Ext. 1 reply notice was
sent to the concerned Advocate. During cross-examination this
witness has become incompetent and failed to testify the
testimony. DW 8 is Rupa Rai himself. He has come to support his
case. He has stated that it was written in the deed of agreement
to sale that if the sale deed was not executed within the time the
earnest money will be forfeited. Though in Ext. 3 it is not so
mentioned rather it is mentioned that amount of Rs. 25,000/-
would be only forfeited by way of cost. From the scrutiny of the
evidence of this witness it reveals that this witness is suppressing
the truth and is trying to give some false statement. DW 9
Rajeshwar Prasad is the Advocate who has sent legal notice on
27.04.1989. He has proved the same as Ext. B. In paragraph 4
this witness states that he cannot say as to whether reply notice
was received by him or not and this goes to show that he being an
Advocate having interest has tried to suppress the hard facts. Ext.
1 is the reply notice which was sent to him and was received. In
paragraph 8 he states that sometimes reply notice is misplaced.
He does not remember as to whether reply of Ext. B had been
received or not. Thus, no reliance can be placed on the statement
of this witness. DW 10 is also a formal witness. He has gone to
give Dasti summon to handwriting expert but he was out of
station, resulting, the same was not received. DW 11 is the
handwriting expert and finger print expert. Besides oral evidences
by way of documentary evidences are: Ext. A is the signature of
Rupa Rai on written statement, Ext. A/A is the signature of Arbind
Prasad on written statement, Ext. B is legal notice and Ext. C is
the expert report.
17. After careful consideration of the evidences
available on the record, it is manifest that Panchi Lal Rai being the
Secretary was always ready with balance consideration money
and always contacted to the defendants and requested them to
execute the sale deed but on some ground or the other they
evaded to execute the sale deed and in course of that one of the
defendants Arbind Prasad showing his urgency took further
advance of Rs. 20,000/- after making endorsement, Ext. 3/A, but
the defendants always evaded the execution of the sale deed on
some plea or the other and then, the plaintiff sent legal notice
dated 24.04.1989 through his lawyer which was not received
knowingly and deliberately and was got returned after bringing
the postal peon in the collusion. The defendants malafidely sent
the legal notice dated 27.04.1989 mentioning false and wrong
facts therein and against that also reply, Ext. 1, was sent
controverting the facts but the same has also been denied by the
defendants which goes to prove the dishonest intention of the
defendants. The plaintiff was always willing to perform his part of
contract and was always ready with consideration money and
asked the defendants to execute the sale deed but later on, on the
plea of death of Sanjay Kumar, they took time and ultimately in
April, 1990 they flatly refused to execute the sale deed, resulting
the suit was filed.
18. Ext. 1 and 1/A and Ext. 4 go to show the
willingness of the plaintiff. The plaintiff was always ready and
willing to perform his part of contract but the defendants refused
and as such it was the defendants who evaded the matter on one
plea or the other and lastly on the plea of mishappening in his
family they took time to execute the sale deed in the year 1990
and ultimately refused in April, 1990. Since the plaintiff was
always ready and willing to perform his part of contract, the
plaintiff is entitled for the reliefs sought for. Accordingly, this point
is decided in favour of the respondents and against the appellants.
19. In the result, finding no merit in this appeal the
same is hereby dismissed on contest but under the circumstances
without cost.
avin/-
(Jitendra Mohan Sharma, J)
CAV DATE 06.09.20116
Print Page
for the appellant further argued that in the case of sale of
immovable property there is no presumption as to time being the
essence of the contract. Even if it is not the essence of the
contract, the court may infer that it is to be performed in a
reasonable time if the conditions are: (i) from the express terms
of the contract; (ii) from the nature of the property; and (iii) from
the surrounding circumstances, for example: the object of
making the contract and for that reliance has been placed upon
(1993) 1 Supreme Court Cases 519 Chand Rani (Smt.)
Dead) by Lrs… Appellants versus Kamal Rani (Smt.) (Dead)
by Lrs… Respondents.
The agreement to sale (Ext. 3)
contains the terms which have been agreed upon that the
transaction of sale should be completed within six months from
the date of execution of the agreement i.e. from 28.10.1988 till
27.04.1989. In last paragraph there is term that if the vendee
fails to get the sale deed registered within the time then, amount
of only Rs. 25,000/- will be forfeited and that cannot be realized
from executant. Further it is mentioned that the land to be sold
would be measured and the payment of the price would be finally
calculated accordingly. In the case of Smt. Indira Kaur and
others (supra) and also in the case of Chand Rani (Supra) it
has been held that the law is well settled that in transaction of
sale of immovable properties time is not the essence of the
contract. The Apex Court in the case of Balasaheb Dayandeo
Naik (dead) through LRS & Ors. vs. Appasaheb Dattatraya
Pawar reported in (2008) 4 SCC Page 464 in paragraph 10,
11, 12 and 14 held that the time was not the essence of the
contract. Here also the land going to be sold is immovable
property and agricultural land and as such time was not the
essence of the contract. There is nothing on the record on behalf
of defendants to show that the defendants got measured the land
rather the plaintiff after sending the Ext. 1/A (legal notice)
requested the defendants to get the land measured and
demarcated and to get the sale deed executed. From the oral
evidences adduced on behalf of the parties also it reveals that the
time was not the essence of the contract and it was never agreed
that the entire earnest money will be forfeited rather by way of
cost only Rs. 25,000/- was to be forfeited. No party can be
allowed to go beyond the express term contained in the
agreement to sale. Accordingly, it is held that the time was not
the essence of the contract.
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.42 of 2006
Most.Sita Devi V Mahal Sahkari Grih Nirman Samiti Ltd. Patna,
CORAM: HONOURABLE MR. JUSTICE JITENDRA MOHAN
SHARMA
Citation:AIR 2016 Patna 191
Date: 06-09-2016
The instant appeal has been preferred against the
judgment and decree dated 24.12.2005 passed by Sri Nagendra Patna High Court FA No.42 of 2006 dt.06-09-2016 2
Prasad Tripathi, the then Subordinate Judge III, Danapur decree
sealed and signed on 06.01.2006 in Title Suit No. 43 of 1990
whereby and whereunder the suit filed by plaintiff/respondent was
decreed on contest with costs. The defendants were directed to
execute the sale deed in favour of plaintiff on receipt of balance of
consideration money from the plaintiff within three months from
the date of judgment, failing which the same be executed through
the process of the court on depositing the balance consideration
money by the plaintiff. The defendants are the appellants here.
2. The plaintiff has filed the suit for a decree of
specific performance of contract and in alternative decree for
realization of Rs. 65,000/- with interest at the rate of 12 per cent.
3. Briefly stated, the case of the plaintiff is that the
original defendants Rupa Rai, Arbind Rai along with one Sanjay
Kumar (deceased) being in need of money for business declared
for selling the land mentioned in Schedule I of the plaint and
ultimately the matter was finalized in between the defendants and
plaintiff through its Secretary Panchi Lal Rai at the rate of Rs.
50,000/- per kattha for area of 16 decimal and accordingly, after
receipt of advance of Rs. 45,000/- Rupa Rai, Arbind Rai and
Sanjay Kumar executed the deed of agreement for sale dated
28.10.1988 with promise to execute necessary sale deed with
respect to land mentioned in Schedule I of the plaint in favour of
plaintiff within six months till 27.04.1989 on receiving the balance
consideration money from the plaintiff, failing which the plaintiff Patna High Court FA No.42 of 2006 dt.06-09-2016 3
would be entitled to get the sale deed executed from the
defendants through the process of the court. It was also agreed
by the plaintiff that if the plaintiff fails to get the sale deed
executed after paying the balance consideration money within the
stipulated period the earnest money would be forfeited. The deed
of agreement for sale executed on 28.10.1988 was handed over
to the Secretary of the plaintiff. The plaintiff being ready with
consideration money always contacted to the defendants and
late Sanjay Kumar requesting them to execute the sale deed but
they evaded the matter on one ground or the other and in the
meantime Arbind Prasad showing urgency demanded Rs. 20,000/-
again and the plaintiff through its Secretary paid a sum of Rs.
20,000/- to said Arbind Prasad on 29.11.1988 and in proof of the
same Arbind Prasad made endorsement to this effect at the back
of first page of deed of agreement for sale and assured to execute
the sale deed. The plaintiff contacted to the defendants several
times and requested to execute the sale deed on receipt of
balance consideration amount but the defendants evaded the
matter then finding no alternative the plaintiff sent a legal notice
dated 24.04.1989 to the defendants through its Advocate Shri
Shiv Nath Sharma which the defendants knowingly and
intentionally did not receive and bringing the postal peon in his
collusion got the notice returned to the learned Advocate of the
plaintiff by making collusive endorsement. The defendants with
intention to grab the advance money of Rs. 65,000/- sent a legal Patna High Court FA No.42 of 2006 dt.06-09-2016 4
notice dated 27.04.1989 through their Advocate Sri Rajendra
Prasad mentioning false and wrong facts to which the plaintiffs
sent reply dated 02.05.1989 controverting all the facts of the legal
notice of the defendants stating that the plaintiff was or are
always ready to perform its part of contract as per agreement and
it was the defendants who were and are not ready to perform
their part of contract. Thereafter, again the Secretary of the
plaintiff met to the defendants in the month of December 1989
with balance consideration amount and requested them to execute
the sale deed, then the defendants replied that due to some
mishappening in their family they are unable to execute the sale
deed and they would execute the sale deed in March,1990. As per
assurance the plaintiff through its secretary approached several
times to the defendants and requested for executing the sale deed
but ultimately on 02.04.1990 the defendants flatly refused to
execute the sale deed with respect to the land mentioned in
Schedule I of the plaint and then this suit was filed.
4. The defendants by filing their written statement
contested the suit, they admitted regarding execution of
agreement to sale and receiving payment of Rs. 45,000/- but
refused regarding receiving payment of Rs. 20,000/- on
29.11.1988 by Arbind Prasad and that Arbind Prasad never made
any endorsement on the back of the deed of the agreement and
the same is forged and fabricated. The plaintiff after entering into
contract was never ready to perform his part of contract and the
time was the essence of the contract. Therefore, the defendants
are not under obligation to perform the terms of the contract. No
notice has ever been served upon the defendants by the plaintiff.
It is false to say that the defendants brought postal peon in their
collusion and got manipulated the service report. The defendants
sent legal notice through their Advocate Shri Rajesh Prasad with
correct statements of the facts and reply notice of the plaintiff was
of no consequence as the same contained false statements. The
plaintiff was in fact not ready with money to perform their part of
contract within stipulated period and consequently amount paid
as advance stood forfeited. The plaintiff was never ready to
perform its part of contract as per agreement whereas the
defendants were or are always ready to perform their part of
contract as per agreement. According to the defendants, on
account of unwillingness on the part of the plaintiff its aforesaid
earnest money was forfeited and the suit is not maintainable.
5. On the basis of the pleadings of the parties,
following issues were settled on re-cast by the learned trial judge:
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff valid cause of action for the suit ?
(iii) Whether one of the executant of Bai-beyana deed
namely Arbind Prasad took Rs. 20,000/- out of total consideration
money from the plaintiff on 29.11.1988 and made endorsement at
the back of Bai-beyana deed dated 28.10.1988 ?
(iv) Is the plaintiff entitled for a decree as sought for ?Patna High Court FA No.42 of 2006 dt.06-09-2016 6
(v) To what other relief or reliefs the plaintiff is
entitled?.
6. Learned Sub-Judge decided all the issues in favour
of the plaintiff/respondent holding that the plaintiff was always
ready and willing to perform the terms of contract up till now and
as such the plaintiff is entitled for the relief as sought for and
accordingly, decreed the suit.
7. The defendants being aggrieved and dissatisfied
with the judgment and decree have preferred this appeal
challenging the maintainability of the same on the ground that the
findings of the learned Sub-Judge on the issues are wrong, he has
adopted different standards in weighing the evidence of PWs from
that of DWs, he has ignored the legal evidence available on the
record and has based his findings on conjectures and surmises.
There was no occasion to give Rs. 20,000/- again to Arbind Prasad
and it is out and out a concocted story. Every thing was finalized
by Rupa Rai being the guardian and father of Arbind Prasad and
Sanjay Kumar and, accordingly, a deed of agreement to sale was
executed. In deed of agreement to sale, which is an important
document for consideration, Exhibit 3, it was agreed that during
the stipulated period i.e. till 27.04.1989 the plaintiff will ask the
defendants to execute the sale deed in different names after
paying different amounts and if the defendants will fail in
executing the sale deed then, the plaintiff has got right to get the
sale deed executed through the process of the court and if the Patna High Court FA No.42 of 2006 dt.06-09-2016 7
plaintiff fails to purchase the property after paying the balance
consideration amount then, the amount of Rs. 25,000/- will be
forfeited as cost and damages. The learned Sub-Judge has
wrongly relied upon oral evidence and documentary evidence of
plaintiff and wrongly held that one of the executant of Bai-beyana
deed namely, Arbind Prasad, took Rs. 20,000/- out of total
consideration money from the plaintiff on 29.11.1988 and made
endorsement at the back of Bai-beyana deed dated 28.10.1988.
The witnesses examined on behalf of plaintiff are not consistent
on that point. PW 5 Anup Rai has come to say that amount of Rs.
20,000/- was given later on, but, during cross-examination, in
paragraph 11, he has stated that amount of Rs. 20,000/- was
given to Rupa Rai and he cannot say the name of the person
present at that time. In paragraph 12 this witness has stated that
he cannot say the name of the owner of hotel where the amount
of Rs.20,000/-was paid. PW 8 Jagdish Prasad Gupta has also come
to say that on 29.11.1988 amount of Rs. 20,000/- was taken by
Arbind Rai and he made endorsement at the back of the first page
of the deed of Bai-beyana. He is the president of Mahal Sahakari
Grih Nirman Samiti Limited, Patna and he is an interested person
and as such his evidence appears not reliable. During crossexamination
in paragraph 24 this witness has stated that amount
of Rs. 20,000/- was given in presence of the witnesses of deed of
Bai-beyana to Arbind Kumar but they have not signed as a
witness on that date. PW 9 is plaintiff no. 2 himself and he has Patna High Court FA No.42 of 2006 dt.06-09-2016 8
supported his case. In paragraph 43 he has stated that amount of
Rs. 20,000/- was given to Arbind Prasad at his house and at that
time his father was also present and further Anup Rai was also
present whereas PW 8 in paragraph 14 has stated that he and
Panchi Lal Rai have only gone to the house of Rupa Rai and
amount of Rs. 20,000/- was given to Arbind Kumar. He cannot
say as to whether Rupa Rai was present in the house or not, so
the evidence of PWs are inconsistent on that point. PW 11 is a
hand writing expert who has examined the disputed signature and
the admitted signature of Arbind Prasad and submitted his report
unscientifically and his evidence is also not reliable. No notice was
ever received by the defendants alleged to be sent by the plaintiff
and Ext. 1/A dated 24.04.1989 is a manufactured document.
Further in the said notice it is alleged that the defendants are not
getting the land measured and demarcated and their gotiya are
saying that defendants have got no title and possession over the
aforesaid land and as such on this ground also the evidence of
PWs is not reliable and is fit to be rejected.
8. On the other hand the evidence of DWs are
consistent and reliable. DW 11 Saiyad Md. Jamil Ahmad, hand
writing expert has specifically stated that the disputed signature of
Arbind Prasad dos not tally with admitted signature of Arbind
Prasad and his evidence is also reliable. Ext. C the expert report is
scientific. Ext. B is the legal notice which after expiry of time was
sent to the plaintiff through learned counsel which they receivedPatna High Court FA No.42 of 2006 dt.06-09-2016 9
and gave reply which is Ext. 1. The evidence of DW 7 Arbind
Prasad is consistent with other evidence and is reliable one. Other
witnesses have also supported the case of the defendants and as
such the reliance placed by learned Subordinate Judge on the
evidence of plaintiff is perfunctory and due to wrong assumption
of facts and evidence. The learned Subordinate Judge has given
wrong findings, resulting, the judgment and decree passed by
learned Subordinate Judge is fit to be set aside. Learned counsel
for the appellant further argued that in the case of sale of
immovable property there is no presumption as to time being the
essence of the contract. Even if it is not the essence of the
contract, the court may infer that it is to be performed in a
reasonable time if the conditions are: (i) from the express terms
of the contract; (ii) from the nature of the property; and (iii) from
the surrounding circumstances, for example: the object of
making the contract and for that reliance has been placed upon
(1993) 1 Supreme Court Cases 519 Chand Rani (Smt.)
Dead) by Lrs… Appellants versus Kamal Rani (Smt.) (Dead)
by Lrs… Respondents. In the present case also there is express
term of the contract that within the stipulated period the sale deed
has to be executed after paying the balance consideration
amount, failing which the earnest money will be forfeited. The
property is agricultural land and was fit for construction of house.
The object of making the contract was for doing business and due
to non-payment of balance consideration money, as the plaintiff
failed to search different purchasers, the defendants did not start
the business and as such the object was frustrated and on this
ground the suit of the plaintiff was fit to be dismissed.
9. On the other hand, on behalf of plaintiffrespondent,
it has been argued that the plaintiff was always
ready to pay the balance consideration money and to get the sale
deed executed. Amount of Rs. 20,000/- was paid to Arbind Prasad
on 29.11.1988 and he has made endorsement and has signed in
proof thereof on the back of page one of the deed of Bai-beyana
which has been marked as Ext. 3/A. The signature of Arbind
Prasad at the time of execution of deed of Bai-beyana and his
disputed signature were examined by the expert. PW 11, who is a
retired hand writing expert, has found both signatures as same.
PW 12 is a photographer who has taken photograph of both the
signatures of Arbind Prasad in presence of both the learned
counsels and Shirestedar. He has proved the negatives and
enlarged photo in the court. The witnesses examined on behalf of
plaintiffs are reliable and trust worthy. It is well proved that on
29.11.1988 Arbind Prasad further took Rs. 20,000/-. It is also an
admitted fact that Sanjay Kumar died and thereafter, the
defendants took some time on that ground but, later on, refused
having dishonest intention to execute the sale deed and then, the
suit was filed. Ext. 1/A is the legal notice, dated 24.04.1989, sent
by Sri Sidhnath Sharma, Advocate Bar Association, Danapur, on
behalf of plaintiff to Sri Rupa Rai and others and by the said notice Patna High Court FA No.42 of 2006 dt.06-09-2016 11
also it reveals that the plaintiff was ready to get the sale deed
executed after measuring the land and demarcating the same but
the said notice was returned back vide Ext. 4 by bringing the
postal peon in collusion and making false endorsement that by
that name no such person is in the locality. Further from Ext. 1,
which is a reply notice, also it reveals that the plaintiff was ready
with the money and has requested to receive the money and
asked the defendants to execute the sale deed and deliver the
possession of land to the plaintiff, that reply noticed is dated
02.05.1989. Issue no. iii being most important was decided by the
learned Subordinate Judge at first and has rightly held that Arbind
Prasad took Rs. 20,000/- on 29.11.1988 after making
endorsement and signature at the back of Bai-beyana deed dated
28.10.1988. The defendants having dishonest intention, only with
a view to grab the advance money and further to take more
money from other persons, failed to perform their part of contract.
The learned Subordinate Judge has rightly decided all the issues in
favour of the plaintiffs and against the defendants and the suit
was rightly decreed. Learned counsel has placed reliance upon a
judgment reported in (1988) 2 Supreme Court Cases page
488 in the case of Smt. Indira Kaur and Others.. Appellants
Versus Sheol Lal kapoor.. Respondents. In the present case,
the plaintiff was always ready and willing to perform his part of
contract and as such the plaintiff’s suit for specific performance
has rightly been decreed. It has been argued that the law is well Patna High Court FA No.42 of 2006 dt.06-09-2016 12
settled that in transactions or sale of immovable property time is
not the essence of the contract. The facts of the case of Chand
Rani (Supra) is quit on different footing. There, the property was
house in urban area. In that case the plaintiff was not ready and
willing to perform his part of contract whereas in the present case,
the plaintiff was always ready to pay the balance consideration
amount and to get the sale deed executed. In Ext. 3 rate was
fixed Rs. 50,000/- per kattha as per measurement but the
defendants never came forward to get the land measured but in
spite of that the plaintiffs were always ready with consideration
amount to pay the same to the defendants and to get the sale
deed executed. According to the learned counsel for the
respondents, the judgment and decree passed by the learned
Subordinate Judge is quite legal, proper and justified and there is
no need of any interference of this Court.
10. On the basis of rival contentions of the parties,
the points for consideration before this Court in this appeal are as
follows:
(i) Whether the time was the essence of the contract ?
(ii) Whether Arbind Prasad one of the executant of
agreement to sale took Rs. 20,000/- out of total consideration
money from plaintiff on 29.11.1988 after making endorsement
and signature at the back of Bai-beyana dated 28.10.1988 ?
(iii) Whether the plaintiff was ready and willing to
perform his part of contract and whether the suit has been rightly Patna High Court FA No.42 of 2006 dt.06-09-2016 13
decreed ?
11. Point No. i :- The agreement to sale (Ext. 3)
contains the terms which have been agreed upon that the
transaction of sale should be completed within six months from
the date of execution of the agreement i.e. from 28.10.1988 till
27.04.1989. In last paragraph there is term that if the vendee
fails to get the sale deed registered within the time then, amount
of only Rs. 25,000/- will be forfeited and that cannot be realized
from executant. Further it is mentioned that the land to be sold
would be measured and the payment of the price would be finally
calculated accordingly. In the case of Smt. Indira Kaur and
others (supra) and also in the case of Chand Rani (Supra) it
has been held that the law is well settled that in transaction of
sale of immovable properties time is not the essence of the
contract. The Apex Court in the case of Balasaheb Dayandeo
Naik (dead) through LRS & Ors. vs. Appasaheb Dattatraya
Pawar reported in (2008) 4 SCC Page 464 in paragraph 10,
11, 12 and 14 held that the time was not the essence of the
contract. Here also the land going to be sold is immovable
property and agricultural land and as such time was not the
essence of the contract. There is nothing on the record on behalf
of defendants to show that the defendants got measured the land
rather the plaintiff after sending the Ext. 1/A (legal notice)
requested the defendants to get the land measured and
demarcated and to get the sale deed executed. From the oral
evidences adduced on behalf of the parties also it reveals that the
time was not the essence of the contract and it was never agreed
that the entire earnest money will be forfeited rather by way of
cost only Rs. 25,000/- was to be forfeited. No party can be
allowed to go beyond the express term contained in the
agreement to sale. Accordingly, it is held that the time was not
the essence of the contract. In the result, this point is decided
against the appellants and in favour of the respondents.
12. Point No. ii:- The case of the plaintiff in this
regard is that besides Rs. 45,000/-, he further paid Rs. 20,000/-
through its secretary Panchi Lal Rai to the defendant Arbind
Prasad on 29.11.1988 and in token of the proof of the same said
Arbind Prasad made an endorsement to this effect at the back of
first page of the deed of agreement for sale which is Ext. 3. The
signature and endorsement of Arbind Prasad on the back of Ext. 3
has been marked as Ext. 3/A.
13. On the other hand the defendants denied the said
payment stating that Arbind Prasad never made any signature or
endorsement on the back of first page of the agreement to sale
and that the same is forged and fabricated one. The plaintiff to
prove this fact got examined the signature of Arbind Prasad in Ext.
3A with the signature of Arbind Prasad on Ext. 3 by PW 11 Keshaw
Prasad hand writing expert by sending photographs of the same
and photos were taken by PW 12 Chunni Lal. Keshaw Prasad PW
11 has submitted his report which is Ext. 5 and further in his Patna High Court FA No.42 of 2006 dt.06-09-2016 15
evidence he has stated that signature of Arbind Prasad on Ext. 3
which is an admitted signature and signature of Arbind Prasad on
Ext. 3/A which is disputed signature is of same person and similar.
Against that the defendant has got examined those signatures by
Saiyad Md. Jamil Ahmad DW 11 who has submitted his report Ext.
C and has stated in his evidence that the signature of Arbind
Prasad on Ext. 3 and disputed signature on Ext. 3/A are not
similar and does not tally. PW 5 Anup Rai who is also one of the
witness to Ext. 3 has stated in his evidence that after execution of
Bai-beyana deed further Rs. 20,000/- was paid by the plaintiff and
Arbind Prasad made endorsement at the Bai-beyana deed in his
presence. During cross-examination he is unable to give the
specific date of payment and further he cannot say the names of
the persons present at that time. He has further stated that he
cannot give name of the owner of the hotel where the payment
was made. PW 8 Jagdish Prasad Gupta, the President of Mahal Cooperative
Society has stated in his examination-in-chief that on
29.11.1988 Arbind Prasad received Rs. 20,000/- from Panchi Lal
Rai and made an endorsement at the back page of Bai-beyana
deed. This witness has been cross-examined but during crossexamination
also he has stated that Arbind Prasad received Rs.
20,000/- on 29.11.1988. In paragraph 14 he has further stated
that Arbind Kumar received Rs. 20,000/- on 29.11.1988 in
presence of the witness of Bai-beyana deed. This evidence of this
witness is corroborated by the evidence of PW 5 who is a witness Patna High Court FA No.42 of 2006 dt.06-09-2016 16
of the deed of Bai-beyana. PW 9 Panchi Lal Rai has stated that on
29.11.1988 he went to the house of Rupa Rai and met to Arbind
Prasad, he requested to the defendants for execution of sale deed
but Arbind Prasad shows his inability to execute the sale deed and
demanded Rs. 20,000/- from him, then, he paid Rs.20,000/- to
Arbind Prasad and thereafter, Arbind Prasad made endorsement
regarding the same at the back of the first page of Bai-beyana
deed and he has proved the signature and endorsement as Ext.
3/A. During cross-examination nothing has come against the
plaintiff rather this fact has been corroborated by the evidence by
those two witnesses during cross-examination. On the other hand,
on behalf of defendants, DW 5 Premdhar Rai has stated that he
along with Arbind Prasad went to Chapra on 29.11.1988 and on
29.11.1988 Arbind Prasad was not present in Danapur but in this
regard no document has been produced by the defendants. PW 7
Arbind Prasad has denied in his evidence about receiving of Rs.
20,000/- from Panchi Lal Rai on 29.11.1988 and further denied
that he has not made any endorsement on the back of first page
of Bai-beyana deed. He has further stated that this endorsement
at the back of first page of Bai-beyana deed and signature is
forged. Arbind Prasad in his evidence has not stated a single word
that on 29.11.1988 he was not present in Danapur and he went to
Chapra with Premdhar Rai DW 5 and it goes to show that the
evidence of DW 5 is not reliable and has not been corroborated.
Arbind Prasad has been cross-examined and during his cross-Patna High Court FA No.42 of 2006 dt.06-09-2016 17
examination he has stated that I will not examine his admitted
and disputed signature by any expert and this goes to show his
suspicious and shaky minds. DW 8 Rupa Rai has also denied about
receiving of Rs.20,000/- by Arbind Prasad.
14. After careful consideration of the evidences and
pleadings of both the parties in this regard, it is manifest that the
plaintiff has succeeded in proving that on 29.11.1988 Arbind
Prasad received Rs. 20,000/- from Panchi Lal Rai and made
endorsement at the back of first page of deed of agreement to
sale dated 28.10.1988. From perusal of expert report Ext. 5 and
Ext. C it reveals that both are contradictory to each other. Learned
Subordinate Judge in his finding has stated that Ext. 5 is more
scientific than Ext. C and I am also of the opinion that Ext. 5 is
based on scientific data and is more reasonable and reliable than
Ext. C. On the record there are signatures of Arbind Prasad on the
written statement and Vakalatnama also and from necked eyes
also it reveals that the signature of Arbind Prasad on Ext. 3/A is
the similar to those signatures on Ext. 3 and further as on written
statement and Vakalatnama. Learned Subordinate Judge after
careful consideration and discussion has rightly held that on
29.11.1988 Arbind Prasad took Rs. 20,000/- from Panchi Lal Rai,
Secretary of plaintiff no. 1 and made an endorsement at the back
of first page of agreement to sale dated 28.10.1988. It is well
settled law that where there are two experts, the court is expert
of the all experts and the learned Subordinate Judge has rightly Patna High Court FA No.42 of 2006 dt.06-09-2016 18
held that Ext.5 is more scientific than Ext. C. In the result, this
point is decided in favour of the respondents and against the
appellant.
15. Point No. iii :- In support of the case the
plaintiff has examined altogether 12 witnesses. PW 1 Uma Nath
Prasad is a formal witness, PW 2 Surendra Prasad is also a formal
witness and proved Ext. 1, PW 3 Santosh Kumar Jaiswal is also a
formal witness and has proved his signature on deed of
agreement to sale as Ext. 2. PW 4 Pradeep Kumar is the deed
writer of the deed of agreement to sale, he has proved the same
as Ext. 3. PW 5 Anup Rai is also one of the witness of agreement
to sale and he has stated that at the time of agreement to sale
amount of Rs. 45,000/- was paid and later on Rs. 20,000/- was
paid. He has further stated that 5 Katthas of land was agreed to
be sold at the rate of Rs. 50,000/- per Kattha and after getting
the contents read over, Rupa Rai gave thumb impression over the
same and he has signed on the deed of agreement to sale as per
the dictation of Rupa Rai. PW 6 Devendra Singh is a formal
witness and has proved envelop by which legal notice Ext. 1/A
was sent and was returned back. PW 7 Gobardhan Rai has come
to say that deed of agreement to sale was executed and Panchi
Lal Rai paid Rs. 45,000/- to Rupra Rai. PW 8 Jagdish Prasad
Gupta is the president of Mahal Co-operative Society. He has fully
supported the case of the plaintiff and has further stated that as
per the terms of deed of agreement, we were always ready to get Patna High Court FA No.42 of 2006 dt.06-09-2016 19
the sale deed executed after paying the balance consideration
amount but the defendants always evaded the matter. He has also
stated that legal notice was sent and when the defendants did not
execute the sale deed then, the suit was brought. In paragraph 15
he has further stated that today also they are ready to pay the
balance consideration amount and to get the sale deed executed.
From the evidence of this witness, it reveals that the plaintiff was
always ready to perform his part of contract and to get the sale
deed executed after paying the balance consideration amount. PW
9 is the plaintiff no. 2 himself. He is the Secretary of Mahal
Sahkari Grih Nirman Samiti. He has fully supported his case as
made out in the plaint. In paragraph 14 of his evidence he has
stated that after execution of deed of agreement to sale he was
always ready with balance consideration amount and to get the
sale deed executed and on 29.11.1988 he went at the house of
Rupa Rai where Arbind Kumar met and when he told him to
execute the sale deed, he demanded Rs. 20,000/-, which was paid
and he made an endorsement accordingly, on the back of page 1
of the deed of agreement to sale. In paragraph 16 he has further
stated that he went at the house of Rupa Rai after 29.11.1988
also and requested him to execute the sale deed but he evaded
the matter. In paragraph 17 he has stated that he requested him
to get the land measured but he did not get the land measured.
In paragraph 18 he has stated that in December, 1989 also he
went at the house of Rupa Rai and then, he told that his son has
died and as such requested to come in the year 1990. In the
month of April, 1990 also he went at the house of Rupa Rai to pay
the balance consideration amount and to get the sale deed
executed but he refused. Earlier also he has sent legal notice on
24.04.1989 and further he has given reply notice also on
02.05.1989. This witness has been cross-examined at length but
nothing has come to discredit his testimony. PW 10 is also a
formal witness. He has proved the legal notice as Ext. 1/A. PW 11
is retired hand writing expert and PW 12 is the photographer.
Besides oral evidences, documentary evidences are: Ext. 1 is
reply of the legal notice, Ext. 1/A is legal notice, Ext. 2 is
signature on the deed of agreement to sale, Ext. 3 is deed of
agreement to sale, Ext. 4 is endorsement on envelope, Ext. 3/A is
the disputed signature of Arbind Prasad on Ext. 3. From Ext. 1/A
and Ext. 1 it reveal that the plaintiff was always ready to pay the
balance consideration amount to the defendants and to get the
sale deed executed. The plaintiff was always willing to perform his
part of contract.
16. On the other hand on behalf of defendants DW 1
Krishna Prasad is a formal witness, he has proved the signature of
Rupa Rai and Arbind Prasad on written statement as Ext. A and
A/1. DW 2 Gyani Rai has come to say that Rupa Rai was trying to
start business of fodder cutting machine, flour and oil machine
and for that he talked with Panchi Lal Rai to sale the land. Rupa
Rai took land from Uma Rai on rent and gave advance of
Rs.10,000/- and further Rupa Rai used to pay rent at the rate of
Rs. 600/- per month but due to shortage of money business was
not started. During cross-examination this witness has become
incompetent. DW 3 Rajeshwar Prasad has also come to say that
Rupa Rai gave advance of Rs. 10,000/- to Uma Rai and took land
to fix Fodder Cutting Machine etc. but due to shortage of fund the
mill was not started and Rupa Rai suffered loss. During crossexamination
he has come to say that first of all he is saying this
matter in the court and as per advice of Rupa Rai he has deposed.
He has become incompetent during cross-examination. DW 4
Mithilesh Kumar Mishra is a formal witness. He has come to say
that on 02.05.1989 he has gone to the house of Rupa Rai and on
that date no peon has come to deliver a letter at the house of
Rupa Rai. During cross-examination he cannot say as to when he
has gone to the house of other and he has not noted down the
same. He has not stated to anyone that on 02.05.1989 that he
has gone to the house of Rupa Rai and there is no other witness.
DW 5 Premdhar Rai has come to say that on 29.11.1988 Arbind
Prasad was at Chapra with him but Arbind Prasad has not stated
like that and as such this witness is not reliable. DW 6 Mirtyunjay
Kumar Azad has come to say that he has met with Panchi Lal Rai
with Rupa Rai in March, 1988 near Bus-stand, Danapur and both
talked regarding execution of sale deed but Panchi Lal Rai took
time of one month to pay the balance consideration amount and
to get the sale deed executed. Rupa Rai again demanded money
for doing business but Panchi Lal Rai did not speak anything and
then, Rupa Rai told him that earnest money will be forfeited.
During cross-examination he has stated that Rupa Rai is his uncle,
further he has become incompetent. He has stated that earnest
money was not paid in his presence and he cannot say the name
of witnesses, identifier and deed writer of the deed of agreement
to sale. DW 7 is Arbind Prasad himself one of the defendants. He
has stated that within six months sale deed was to be executed
and time was till 27.04.1989 and as within time sale deed was not
executed and as such the earnest money was forfeited. He has
accepted the payment of Rs. 45,000/- as an advance but denied
regarding payment of Rs. 20,000/-. He has stated that for doing
business of fodder cutting machine, the land was going to be sold
but due to shortage of fund business was not started. After the
deed of agreement to sale was prepared, his father went to Panchi
Lal Rai and demanded money but he always evaded. He has also
stated to Panchi Lal Rai to pay the balance consideration amount
and get the sale deed executed but Panchi Lal Rai evaded the
matter. His father has demanded some money for business but
Panchi Lal Rai told him that at present he has got no money and
then, legal notice was sent to him and in spite of receipt of legal
notice Panchi Lal Rai never came to his father. This witness has
fully supported the case as made out in the written statement and
he has further stated that for drafting written statement he went
to an Advocate whose name is some Chaudhary and he did not
identify that Advocate. He cannot say as to what was written in
the written statement. Before filing written statement, no notice
sent by plaintiff was received and Panchi Lal Rai did not reply to
his notice which appears incorrect as vide Ext. 1 reply notice was
sent to the concerned Advocate. During cross-examination this
witness has become incompetent and failed to testify the
testimony. DW 8 is Rupa Rai himself. He has come to support his
case. He has stated that it was written in the deed of agreement
to sale that if the sale deed was not executed within the time the
earnest money will be forfeited. Though in Ext. 3 it is not so
mentioned rather it is mentioned that amount of Rs. 25,000/-
would be only forfeited by way of cost. From the scrutiny of the
evidence of this witness it reveals that this witness is suppressing
the truth and is trying to give some false statement. DW 9
Rajeshwar Prasad is the Advocate who has sent legal notice on
27.04.1989. He has proved the same as Ext. B. In paragraph 4
this witness states that he cannot say as to whether reply notice
was received by him or not and this goes to show that he being an
Advocate having interest has tried to suppress the hard facts. Ext.
1 is the reply notice which was sent to him and was received. In
paragraph 8 he states that sometimes reply notice is misplaced.
He does not remember as to whether reply of Ext. B had been
received or not. Thus, no reliance can be placed on the statement
of this witness. DW 10 is also a formal witness. He has gone to
give Dasti summon to handwriting expert but he was out of
station, resulting, the same was not received. DW 11 is the
handwriting expert and finger print expert. Besides oral evidences
by way of documentary evidences are: Ext. A is the signature of
Rupa Rai on written statement, Ext. A/A is the signature of Arbind
Prasad on written statement, Ext. B is legal notice and Ext. C is
the expert report.
17. After careful consideration of the evidences
available on the record, it is manifest that Panchi Lal Rai being the
Secretary was always ready with balance consideration money
and always contacted to the defendants and requested them to
execute the sale deed but on some ground or the other they
evaded to execute the sale deed and in course of that one of the
defendants Arbind Prasad showing his urgency took further
advance of Rs. 20,000/- after making endorsement, Ext. 3/A, but
the defendants always evaded the execution of the sale deed on
some plea or the other and then, the plaintiff sent legal notice
dated 24.04.1989 through his lawyer which was not received
knowingly and deliberately and was got returned after bringing
the postal peon in the collusion. The defendants malafidely sent
the legal notice dated 27.04.1989 mentioning false and wrong
facts therein and against that also reply, Ext. 1, was sent
controverting the facts but the same has also been denied by the
defendants which goes to prove the dishonest intention of the
defendants. The plaintiff was always willing to perform his part of
contract and was always ready with consideration money and
asked the defendants to execute the sale deed but later on, on the
plea of death of Sanjay Kumar, they took time and ultimately in
April, 1990 they flatly refused to execute the sale deed, resulting
the suit was filed.
18. Ext. 1 and 1/A and Ext. 4 go to show the
willingness of the plaintiff. The plaintiff was always ready and
willing to perform his part of contract but the defendants refused
and as such it was the defendants who evaded the matter on one
plea or the other and lastly on the plea of mishappening in his
family they took time to execute the sale deed in the year 1990
and ultimately refused in April, 1990. Since the plaintiff was
always ready and willing to perform his part of contract, the
plaintiff is entitled for the reliefs sought for. Accordingly, this point
is decided in favour of the respondents and against the appellants.
19. In the result, finding no merit in this appeal the
same is hereby dismissed on contest but under the circumstances
without cost.
avin/-
(Jitendra Mohan Sharma, J)
CAV DATE 06.09.20116
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